Joyce Rowley v. New Bedford, City of - Office of The City Solicitor (SPR 20242288)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 23, 2024 SPR24/2288 Romina Moniz Administrative Manager Central Records Access Officer City of New Bedford – Solicitor’s Office 133 William Street, Room 203 New Bedford, MA 02740 Dear Ms. Moniz: I have received the petition of Joyce Rowley appealing the response of the City of New Bedford – Solicitor’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 29, 2024, Ms. Rowley requested “… [v]ideos of the elephants taken by the barn cameras between the hours of 5:00 pm to 7:00 am for the period July 28, 2024 to the time of fulfillment.” On August 12, 2024, the Office provided a response. Unsatisfied with the Office’s response, Ms. Rowley petitioned this office and this appeal, SPR24/2288, 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. Att’y 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 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 SPR24/2288 Page 2 August 23, 2024 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 Office’s August 12th Response On August 12, 2024, the Office provided Ms. Rowley with a response stating, “[a]fter conducting a search of its records, the City does not have any records in its possession matching the specifications given in your July 29th request.” Current Appeal Ms. Rowley appealed this response, stating that a veterinarian for the City of New Bedford had “… testified at a federal trial on May 13, 2024 that she viewed videos of the elephants in the barn every day from the night before…” and that “… the videos were written over.” Ms. Rowley also stated that she had “… visited the inside of the barn by subpoena …” and “… saw the cameras in the barn aimed at the elephants stalls.” In an email dated August 16, 2024, the Office clarified that “… the cameras operate on a ‘live stream’ system only. Recordings are not retained.” As to the comments contained in Ms. Rowley’s appeal, it explained that, “… the City previously had a camera system in place that was a DVR-style system where videos were ‘written over.’ This system was replaced by the new system … put in place at the end of June, 2024.” No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Given that the requested records do not exist and this office has no authority to compel the Office to create records, 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 SPR24/2288 Page 3 August 23, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Joyce Rowley Katherine Schuko