Joyce Rowley v. New Bedford, City of - Office of The City Solicitor (SPR 20242092)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 5, 2024 SPR24/2092 Romina Moniz Central Records Access Officer City of New Bedford 450 Washington Street New Bedford, MA 02740 Dear Ms. Moniz: I have received the petition of Joyce Rowley appealing the response of the City of New Bedford (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 28, 2024, Ms. Rowley requested: [1] Clinical records for Asian elephants Ruth & Emily for the period April 15, 2024 to the time of fulfillment. [2] Records of injury and/or incidents to the Asian elephants or keepers for the period May 25, 2024 to fulfillment. [3] Records of either Asian elephant ‘going down,’ falling, or otherwise being unable to rise for the period May 24, 2024 to fulfillment. [4] Laboratory results and/ or reports for bloodwork, cultures, or other tests performed on Asian elephants, for the period April 14, 2024 to fulfillment. [5] Keeper/Daily logs for the period May 25, 2024 to fulfillment. [6] The current Asian elephants’ weights for the period May 25, 2024 to fulfillment. [7] Radiographs, if any, for Ruth and Emily performed and any reports or readings by a DACVR of same, for the period May 25, 2024 to fulfillment. [8] Asian elephant consultant reports or assessments from May 25, 2024 to fulfillment. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Romina Moniz SPR24/2092 Page 2 August 5, 2024 [9] Quality of Life (QOL) Assessments and meeting minutes of QOL meetings for Asian elephant Ruth and Emily for the period May 15, 2024 to fulfillment. Please provide meeting minutes for the QOLAs as well. Please include documents relating to necropsy preparations and all disposition documents for the remains should either elephant perish while I am waiting for your response. [10] Zoo transactions including births, deaths, transfers, and information on the age, sex, and ID number of the specimens, as well as the name of the receiving/donating facility for the period May 25, 2024 to fulfillment. [11] Medical records/necropsy reports for the following ‘specimens’ … [12] Association of Zoos & Aquarium inspection report or other document indicating the results of their visit last week. The City provided a response on July 12, 2024, including some records responsive to the request. Unsatisfied with the City’s response, Ms. Rowley petitioned this office and this appeal, SPR24/2092, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The City’s July 12th Response In its July 12, 2024 response, the City states it “identified multiple records in its possession matching the specifications given in your June 28th request… There are no responsive records for numbers 2, 3, and 6 of your request.” Current Appeal In her appeal to this office, Ms. Rowley states, “[o]ther documents requested at the time

Romina Moniz SPR24/2092 Page 3 August 5, 2024 may not be held by the City, but the records supplied on July 12 indicated a January 2024 radiological report had been entered in June 2024 clinical records. This obvious error indicates that the report exists in the City’s possession.” In light of the information provided in Ms. Rowley’s petition, it is unclear if the City possesses additional records responsive to the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). The City must clarify this matter. Conclusion Accordingly, the City is ordered to provide Ms. Rowley with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Joyce Rowley