George and Jen Burden v. Lunenburg, Town of - Police Department (SPR 20231851)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 23, 2023 SPR23/1851 Thomas Gammel Chief of Police Lunenburg Police Department 655 Massachusetts Avenue Lunenburg, MA 01462 Dear Chief Gammel: I have received the petition of George and Jen 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 August 8, 2023, the Burdens requested “any and all documents related to noise coming from [a specified address].” The Department responded on the same day, indicating that it had previously provided all responsive records. Unsatisfied with the Department’s response, and claiming the Department possesses additional records, 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). 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. 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 Gammel SPR23/1851 Page 2 August 23, 2023 The Department’s August 8th Response In the Department’s August 8, 2023 response, a representative of the Department states the following to Mr. and Ms. Burden: To my knowledge you have all of the reports as it relates to your residence. You have made several public records requests and you have been issued the records that are on file. In their appeal petition, Mr. and Ms. Burden contend “that there is other documentation surrounding the request.” 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). 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). In a telephone call with this office on August 14, 2023, the Department confirmed that it does not possess any additional records responsive to Mr. and Ms. Burden’s request. Conclusion Where the Department has confirmed that it does not possess any additional responsive records, and has no duty to create records responsive to the request, I will consider this administrative appeal closed. If Mr. and Ms. Burden are 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: George and Jen Burden