Corey Kelleher v. Lunenburg, Town of - Police Department (SPR 20232473)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 1, 2023 SPR23/2473 Thomas L. Gammel Chief of Police Lunenburg Police Department 655 Massachusetts Avenue Lunenburg, MA 01462 Dear Chief Gammel: I have received the petition of Corey Kelleher 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 May 12, 2023, Mr. Kelleher requested: 1) 2/23/23 23LUN-51- . . . Body Camera Footage 2) 8/12/22 23LUN-51- . . . Interview Room Footage and Recording 3) 4/29/22 22LUN-340- . . . Parking Lot Footage 4) [a specified police report dated] 2/23/23[.] Prior Appeal The requested records were the subject of a prior appeal. See SPR23/1651 Determination of the Supervisor of Records (August 1, 2023). In my August 3rd determination, I found that the Department did not meet its burden to withhold responsive records for Items 1, 2, and 3 under Exemption (a) of the Public Records Law. On October 10, 2023, the Department responded and produced responsive records for Item 1. Unsatisfied with the Department’s lack of production of records for Items 2 and 3, Mr. Kelleher petitioned this office and this appeal, SPR23/2473, 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 SPR23/2473 Page 2 November 1, 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. The Department’s October 10th response In its October 10, 2023 response, the Department stated, “[s]ee the attached BWC for the requested.” Current Appeal Mr. Kelleher indicated in his appeal that the Department did not provide all documents responsive to Items 2 and 3 of the request. In an email to this Office on October 30, 2023, the Department further explained why it did not produce records responsive to Items 2 and 3 of the request. The Department stated: I received a request for a Public Records requested for parking lot footage and body worn camera footage regarding [Item 3]. The parking lot footage and body worn camera footage is not preserved indefinitely unless a certain criteria is met. Therefore, the requested footage is not in existence at the Luneburg Police Department. I received a request for a Public Records request for lobby interview footage regarding [Item 2]. The Interview room footage is not preserved indefinitely unless a certain criteria is met. Therefore, the requested footage is not existence at the Luneburg Police Department. Records Management Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). The Department’s October 30th response raises concerns regarding records management practices by the Department. Please be aware safeguards must be instituted by the Department to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, § 8; G. L. c. 66, § 13; G. L. c. 66, § 15. For further guidance in records management and retention, the Department may contact the Records Management Unit (RMU) at 617-727-2816. The RMU operates under the authority of the Supervisor of Records, assisting state and local government entities in creating, managing,

Chief Thomas L. Gammel SPR23/2473 Page 3 November 1, 2023 securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government. Training workshops on records management are conducted upon request. Conclusion Given that the requested records no longer exist, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Corey Kelleher