George and Jen Burden v. Lunenburg, Town of - Police Department (SPR 20231462)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 10, 2023 SPR23/1462 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 records received by [an identified individual] from [another identified individual] and any and all records sent by [an identified individual] to [another identified individual]. Please provide any and all records received by [an identified individual] from [another identified individual] and any and all records sent by [an identified individual] to [another identified individual]. Please provide any and all records received by [an identified individual] from [another identified individual] and any and all records sent by [an identified individual] to [another identified individual]. On June 16, 2023, the Department responded. Unsatisfied with the response, Mr. Burden petitioned this office and this appeal, SPR23/1462, 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). 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 SPR23/1462 Page 2 July 10, 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. 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 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: As it relates to part one of your request, this Department does not have possession, custody or control of the records requested….As a result, the Department is unable to respond to your above request. As it relates to part two of your request, if the Department has any records that relate to [two identified individuals] Public Records Requests, this Department does not intend to release the information. On May 30, 2023, a Harassment Restraining Order was filed against you by [two identified individuals] in Fitchburg District Court. Although the order was not issued, the information that you are seeking could be construed as a form of harassment and retaliation to the order that was filed against you. Current Appeal In his appeal, Mr. Burden argues: We would like to appeal the response below to our public records request in the email trail below for the reason [the Department] has incorrectly stated the request in his response. He also provided a response that pertains to another document request. We did not request PRRs that were submitted by [an identified individual] in this PRR….Also [the Department] has not identified the records that the LPD intends to withhold. It is believed there are also emails between [1.] [two identified individuals], [2.] [two identified individuals] and [3.] [two identified individuals]. Based on the Department’s response and Mr. Burden’s appeal, it is unclear what records responsive to the request are being withheld from disclosure. Under the Public Records Law, the burden shall be upon the records custodian to identify records being withheld and prove with specificity the exemption which applies. G. L. c. 66, § 10 (b)(iv) (written response must “identify

Chief Thomas L. Gammel SPR23/1462 Page 3 July 10, 2023 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 ...”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Consequently, I find the Department did not meet its burden of specificity to in responding to the records request. Further, based on Mr. Burden’s appeal, it is unclear if the Department possesses additional 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 additional 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). Conclusion Accordingly, the Department is ordered to provide Mr. Burden with a response to the 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 this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: George Burden