George and Jen Burden v. Lunenburg, Town of (SPR 20240447)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 26, 2024 SPR24/0447 Heather R. Lemieux Town Manager Town of Lunenburg 17 Main Street Lunenburg, MA 01462 Dear Ms. Lemieux: I have received the petition of George Burden appealing the response of the Town of Lunenburg (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 31, 2024, Mr. Burden requested, “all records regarding the comment made by [a named individual] that we have requested a financial audit of the Lunenburg Police Department…” The Town responded on February 1, 2024. Unsatisfied with the response, Mr. Burden petitioned this office and this appeal, SPR24/0447, 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. 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. 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

Heather R. Lemieux SPR24/0447 Page 2 February 26, 2024 custodian must provide the responsive records. The Town’s February 1st Response In its February 1, 2024 response, the Town stated, “[Mr. Burden] already [has] copies of any emails [he] sent to the town requesting a financial audit of the Lunenburg Police Department. This records request has been fulfilled.” Current Appeal In his appeal, Mr. Burden states, “[a named individual] made comments at a Select Board meeting on January 9th about George requesting a financial audit of the Lunenburg Police Department. [A named individual] indicated during the meeting he was willing to speak about it since it was all documented in public records… Yes, we did send a request but the request does not indicate anything about the reason for requesting the audit… Since [a named individual] indicated this was all indicated in public records, we are requesting those public records.” Possession, Custody, or Control The Town is 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). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on Mr. Burden’s appeal, it is unclear whether the Town possesses additional records responsive to Mr. Burden’s request. The Town must clarify this. Conclusion Accordingly, the Town 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 10 business days. A copy of the 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 Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: George Burden