George and Jen Burden v. Lunenburg, Town of - Police Department (SPR 20231417)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 6, 2023 SPR23/1417 Chief Thomas L. Gammel Chief of Police Lunenburg Police Department 655 Massachusetts Avenue Lunenburg, MA 01462 Dear Chief Gammel: I have received the petition of George Burden appealing the response of the Lunenburg Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 4, 2023, Mr. Burden requested: [A]ny and all documents regarding complaints made to the Town of Lunenburg (town manager, selectman, etc.) or the Lunenburg Police Department between and including the dates of 01/01/2000 and 01/31/2023 (or as far back as can be provided-please provide the dates that the request fulfills) regarding nepotism, favoritism, or ‘friends in position of authority’ for any matter handled/ investigated, etc. by the Lunenburg Police Department. On June 16, 2023, the Department responded. Unsatisfied with the response, Mr. Burden petitioned this office and this appeal, SPR23/1417, 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(b)(iv); 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). To meet the specificity requirement a custodian 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

Chief Thomas L. Gammel SPR23/1417 Page 2 July 6, 2023 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 Department’s June 16th Response In its June 16, 2023 response, the Department states: Please find the attached response that was previously issued to you. The Department is under no obligation to re-issue a response for the same request which a response was already provided to you. If you did not appeal the response in the required time you would have to address that with the Secretary of State Office. In its June 16th response, the Department references a response dated February 7, 2023 that was provided to Mr. Burden. In the February 7th response, the Department states: This Department does not have possession, custody, or control of the records requested. The mandatory disclosure provision of the Public Records Law only applies to information that is in the custody of the Department at the time the request is received. As a result, there is no obligation for the Department to create a record for the requester to honor a request….As a result, the Department is unable to respond to your above request. Current Appeal In his appeal, Mr. Burden argues, “I would like to appeal the response…to my public records request…for the reason that I was told by [an identified individual] that the Lunenburg Police had received a few complaints regarding favoritism/friends in places of authority and those records have not been provided.” Based on Mr. Burden’s appeal, it is unclear if the Department possesses records responsive to the request. 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). To the extent that records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay).

Chief Thomas L. Gammel SPR23/1417 Page 3 July 6, 2023 Sincerely, Manza Arthur Supervisor of Records cc: George Burden