Joyce Rowley v. New Bedford, City of - Office of The City Solicitor (SPR 20242720)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 11, 2024 SPR24/2720 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 (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 11, 2024, Ms. Rowley requested the following: [1] Livestream video from the elephant barn camera or cameras from 5:00 pm to 7:00 am beginning today, September 11, 2024 and continuing through October 11, 2024 … [2] A copy of the last recorded video from the elephant barn in “late June” … Previous Appeal A similar request was the subject of a previous appeal. See SPR24/2288 Determination of the Supervisor of Records (August 23, 2024). In SPR24/2288, 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.” In my August 23rd determination, I found that the City had met its burden in responding to Ms. Rowley’s request, as no digital recordings of the elephant barn or its contents existed; the “barn cameras” operated exclusively on a livestream system and the City was under no duty to create a responsive record. On September 25, 2024, the City provided a response. Unsatisfied with the City’s response, Ms. Rowley petitioned this office and this appeal, SPR24/2720, was opened as a result. 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 SPR24/2720 Page 2 October 11, 2024 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 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 September 25th Response On September 25, 2024, the City informed Ms. Rowley that “[a]fter conducting a search of its records, the City has not been able to identify any records in its possession matching the specifications given in [her] request.” Current Appeal In her September 30, 2024 appeal petition, Ms. Rowley clarified that she was not seeking a copy of the requested records, but rather seeking to inspect any available videos from the “barn cameras.” This is consistent with her September 11th request, which stated that “[a] Zoom link or other similar platform that allows viewing is an acceptable means of inspection.” Based on the City’s responses, it is clear that no digital recordings exist which are responsive to Request #2. However, it is unclear whether the City has other records in its possession responsive to Request #1. Specifically, the City must clarify whether it is possible for Ms. Rowley to inspect the “[l]ivestream video of the elephant barn camera or cameras …” 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).

Romina Moniz SPR24/2720 Page 3 October 11, 2024 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 (10) 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. Ms. Rowley may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Joyce Rowley