Friedrich Lu v. Brookline, Town of - Town Clerk (SPR 20210042)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 15, 2021 SPR21/0042 Chris Tisbert Record Access Officer Town of Brookline 333 Washington Street, Room 104 Brookline, MA 02445-6853 Dear Mr. Tisbert: I have received the petition of Friedrich Lu appealing the response of the Town of Brookline (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on January 4, 2021, Mr. Lu requested certain police related records. The Town responded on January 6, 2021. Unsatisfied with the Town’s response, Mr. Lu petitioned this office and SPR21/0042 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 town 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). The Town’s January 6th response In its January 6th response, the Town stated, “…that there are no responsive records to your public records request.” 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

Chris Tisbert SPR21/0042 Page 2 January 15, 2021 Please be advised, under the Public Records Law the Town is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). 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). In a conversation between a Public Records Division staff attorney and a Town representative, the Town confirmed that it had no records responsive to the request. Conclusion Whereas the Town does not possess records responsive to Mr. Lu’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Friedrich Lu