Joyce Rowley v. New Bedford, City of - Office of The City Solicitor (SPR 20242219)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 20, 2024 SPR24/2219 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 21 2024, Ms. Rowley requested: [1] All legacy donations between January 1, 2010 to the present including names, amount of donation, whether and when it was received and any conditions or restrictions imposed on it; [2] Grants by foundations, trusts, or other non-profits in excess of $1,00 [sic] between January 1, 2010 to the present including names, amount of donation, any conditions or restrictions imposed on it and whether and when it was received. [3] Donations from individuals in excess of $1,000 between January 1, 2015 to the present including names, amount of donation, and when it was received. The City provided a response on July 29, 2024. Unsatisfied with the City’s response, Ms. Rowley appealed, and this case, SPR24/2219, 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). 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 SPR24/2219 Page 2 August 20, 2024 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. If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City’s July 29th Response In its July 29, 2024 response, the City states, “[a]fter conducting a search of its records, the City has identified two records in its possession matching the specifications given in your June 24th request. The City does not have any responsive records for numbers 1 and 3 of your request.” In a subsequent email to Ms. Rowley sent on July 30, 2024, the City provided her with additional records. Current appeal In her appeal to this office, Ms. Rowley states, “the documents do not comply with the request in substance (all documents and during specific timeframes)… As noted below, the Secretary of State has already determined that the BPZS is an agent of the City as its offices are located there, as are its documents. Importantly, their formation was exclusively to raise money in support of the City’s zoo. The records are kept on City property by a City agent and therefore are in control, custody or possession of the City. It is the City’s responsibility to produce them. The City acknowledges that there may be additional responsive documents because I was referred to the BPZS executive director to request them.” In an email to this office on August 16, 2024, the City confirmed that it provided all responsive records in its possession to Ms. Rowley. Conclusion Where the City confirmed that it does not possess additional responsive records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Rowley is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Romina Moniz SPR24/2219 Page 3 August 20, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Joyce Rowley