Joyce Rowley v. New Bedford, City of - Office of The City Solicitor (SPR 20251422)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 3, 2025 SPR25/1422 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 April 10, 2025, Ms. Rowley requested the following: [1] Clinical records for Asian elephant Emily, for the period beginning on March 18, 2025 to the time of fulfillment[;] [2] Records of injury and or incidents to Emily or keepers for the period March 18, 2025 to fulfillment[;] [3] Laboratory results and/or reports for bloodwork, cultures, or other tests performed on Emily for the period beginning on March 18, 2025 to the time of fulfillment[;] [4] Keeper’s Daily logs for the period March 18, 2025 to the time of fulfillment[;] [5] Emily’s current weight for the period March 18, 2025 to the time of fulfillment[;] [6] Radiographs, if any, for Emily performed and any reports or readings by a DACVR of same, for the period *January 1, 2025* to the time of fulfillment[;] [7] Asian elephant consultant reports or assessments from March 18, 2025 to the time of fulfillment[;] [8] Quality of Life (QOL) Assessments and meeting minutes of QOL meetings for Emily for the period March 18, 2025 to the time of fulfillment[;] [9] Any documents not previously provided on Asian elephant Ruth regarding [eight identified categories of records] . . .[;] [10] All four of Ruth’s limbs were removed for postmortem advanced imaging. Please provide the results of the postmortem imaging and associated reports[;] [11] Zoo transactions including births, deaths, transfers, and information on the 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 SPR25/1422 Page 2 June 3, 2025 age, sex, and ID number of the specimens, as well as the name of the receiving odonatingr [sic] facility for the period March 18, 2025 to the time of fulfillment. On April 24, 2025, the City provided a link to some responsive records, indicated that it did not possess records responsive to Items 2, 6, 7, 8, and 9 of the request, and further noted that it would provide a response to Item 10 “within 25 business days from receipt of [the] request.” On May 15, 2025, the City advised that a thumb drive containing the records in its possession responsive to Item 10 was available for pickup at the City Solicitor’s Office Subsequently, in an email to the City dated May 19, 2025, Ms. Rowley modified her request to include, “any and all reports associated with the imaging” the City provided in its May 15th response to Item 10 of her April 10th request, as described above. The City responded on May 19, 2025. Unsatisfied with the City’s response, Ms. Rowley petitioned this office and this appeal, SPR25/1442, 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 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 May 19th Response In its May 19, 2025 response to Ms. Rowley’s modified request, the City explained, “[a]fter confirming with the Keeper of Records, what was provided to you is all that the City possesses matching the specifications provided in your request of April 10th.” Current Appeal In her May 20, 2025 appeal petition, Ms. Rowley asserts that the City possesses additional records responsive to her modified request and further contends the following:

Romina Moniz SPR25/1422 Page 3 June 3, 2025 On May 15, 2025, the City [provided] a thumbdrive with the images but not the reports. . . . I received the thumbdrive . . . and noted the missing documents. However, the City did not claim it did not have the “associated reports” on April 24th, or that there was a problem with the “specifications” in my request. The City’s responses indicate that there is a report, but that my request was not properly worded in order to receive it. It defies belief that the images, part of an MRI study performed on March 8, 2025 as indicated on the images, would not have also had a report on the findings and impressions by the veterinary radiologist. It is equally unlikely that the City does not have a copy of that report over two months later. No Duty to Create Records 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). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In a telephone conversation with a representative of the City on June 3, 2025, the City confirmed it possesses no records responsive to Ms. Rowley’s modified request. Specifically, the City confirmed that it possesses no records responsive to “any and all reports associated with the imaging” the City provided in its May 15, 2025 response to Item 10 of Ms. Rowley’s April 10, 2025 request. Conclusion Where the City confirmed that it does not possess records responsive to Ms. Rowley’s request, 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). Sincerely, Manza Arthur Supervisor of Records cc: Joyce Rowley