George and Jen Burden v. Lunenburg, Town of (SPR 20230670)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 21, 2023 SPR23/0670 Heather Lemieux Town Manager Records Access Officer 17 Main Street Lunenburg, MA 01462 Dear Ms. Lemieux: I have received the petition of George Burden appealing the response of the Town of Lunenburg (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 26, 2023, Mr. Burden requested the following: [A]ny and all documents, records and reports, including but not limited to emails, recorded discussions, memos, communications of any type, notes, video, etc., deriving from any and all communications between residents of the Vill[age] of Flat Hill in Lunenburg or anyone else were the Lunenburg Police Department or the Town Manager’s office or any other town office was contacted on Friday, December 2, 2022 regarding hunting, dumping, vehicles parked, or any other situation that occurred on the private property owned by The Village At Flat Hill PRA Condominium Trust (LPD refers to this as conservation land). The Town responded on February 10, 2023, providing three responsive records, indicating that the Police Department would respond separately, and providing a fee estimate. Unsatisfied with the Town’s response, and objecting to the fees, Mr. Burden appealed, and this case 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

Heather Lemieux SPR23/0670 Page 2 April 21, 2023 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. Fee Estimates - Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first 2 (two) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Current Appeal In his appeal petition, Mr. Burden divides his appeal in two parts, and contends the following: First being the non receipt of a response from the Luneburg Police Department for the public records request ... made to the department on January 26, 2023. Second, the response from the Town Manager for the Town of Lunenburg portion of the public records request only provides documents prior to December 2, 2023.

Heather Lemieux SPR23/0670 Page 3 April 21, 2023 Regarding the Second part of his appeal, among other things, Mr. Burden goes on to question “why [he] received documents not requested,” whether it is “appropriate to not provide documents requested on a specific records request because the document being requested was included in another response to a request but was not expected to be in that other response,” and asks this office to “review if the charges being requested from the Town Manager for additional time to search are appropriate.” He further questions whether “the record custodians [are] required to respond to questions regarding a response.” Issues Outside Authority of this Office In addition to issues regarding the Public Records Law, in his appeal petition, and in subsequent emails to this office, Mr. Burden also raises issues concerning harassment, property law, and the conduct of law enforcement officers. Please note that these matters are outside the jurisdiction of this office. Given that such issues do not fall within the authority of this office, I am unable to address such issues in this determination. Mr. Burden is advised that he may wish to seek advice from private legal counsel to address these matters. I understand that a staff attorney of the Public Records Division discussed this with Mr. Burden by telephone. Records in Existence; No Duty to Answer Questions, Conduct Research, Create Documents Please be advised that 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). 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). However, 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). Subsequent to the opening of this appeal, in a letter to Mr. Burden and this office on April 7, 2023, a representative for the Lunenburg Police Department (Department) explained that the Department “does not have possession, custody or control of the records requested.” In a telephone conversation with this office on the same day, the Department further confirmed that it had previously provided all records responsive to similar previous requests, and does not possess additional records responsive to the current request. Where the Department has confirmed that it does not possess records responsive to this request, I find that the first part of Mr. Burden’s appeal is resolved. The Town’s February 10th Response and Fee Estimate In its February 10, 2023 response, the Town provides three responsive records, and provides the following fee estimate:

Heather Lemieux SPR23/0670 Page 4 April 21, 2023 Although there are no indications there would be any other staff in the Town Manager’s office or any other town office with related public records, if [Mr. Burden] would like a further search of records, the cost will be $25/hour and [the Town Manager] reasonably estimate[s] it will take at least two hours for a total of $50.00, as allowed per the Public Records Access regulations. Based on the Town’s response, it is unclear why the Town requires two hours to search its records for this request. The Town must provide further details regarding the tasks involved and what each task entails. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, the Town is advised that under the Public Records Law, where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce records, but the fee shall not be more than $25 per hour. G. L. c. 66, § 10(d)(iii). Accordingly, the Town must confirm whether the hourly rate being used is equal to or less than that of the lowest paid employee with the necessary skills to perform the tasks. For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Town is ordered to provide Mr. Burden with a response to his request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: George Burden Thomas Gammel, Chief of Police