George and Jen Burden v. Lunenburg, Town of - Police Department (SPR 20232122)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 21, 2023 SPR23/2122 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 August 22, 2023, Mr. Burden requested, “any and all records regarding the 11/11/14 complaint on [a named individual].” On September 1, 2023, the Department responded and provided Mr. Burden with responsive records. Unsatisfied with the Department’s response, Mr. Burden petitioned this office and this appeal, SPR23/2122, 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 Department 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 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 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 SPR23/2122 Page 2 September 21, 2023 custodian must provide the responsive records. The Department’s September 1st Response In its September 1, 2023 response, the Department provided redacted records and stated, “[a]ttached is the document you requested.” Current Appeal In his appeal, Mr. Burden states, “the provided documents appear to be unnecessarily redacted…” While the Department provided Mr. Burden with a redacted record, the Department did not claim an exemption under the Public Records Law to explain its redactions. The Department’s response did not contain the specificity required in a denial of access under the Public Records Law. See G. L. c. 66, § 10(b)(iv) (“the burden shall be upon the custodian to prove with specificity the exemption which applies”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Specifically, the Department has not met its burden to show how the redacted portions are restricted from public disclosure and fall within an exemption under the Public Records Law. As a result, I find that the Department has not met its burden in responding to the request. The Department must identify an exemption that applies to withhold portions of the records from disclosure. G. L. c. 66, § 10(b). 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 the response to this office at pre@sec.state.ma.us. Mr. Burden may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: George Burden