George and Jen Burden v. Lunenburg, Town of - Police Department (SPR 20241487)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 30, 2024 SPR24/1487 Lieutenant Jeffrey M. Thibodeau Records Access Officer Lunenburg Police Department 655 Massachusetts Avenue Lunenburg, MA 01462 Dear Lieutenant Thibodeau: 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 April 4, 2024, Mr. Burden requested, “any and all documents relating to the patrol of any Lunenburg Police staff who was patrolling or who was called to an incident on [specified private roads] around 8:00 AM on April 4, 2024.” Prior Appeal This request was the subject of a prior appeal. See SPR24/1329 Determination of the Supervisor of Records (May 14, 2024). In my May 14th determination, I found that it was unclear if the Town possessed additional records responsive to the request. The Department responded on May 15, 2024. Unsatisfied with the response, Mr. Burden petitioned this office and this appeal, SPR24/1487, 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 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

Lieutenant Jeffrey M. Thibodeau SPR24/1487 Page 2 May 30, 2024 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 May 15th Response In its May 15, 2024 response, the Department stated the following: [The Department] does not have any records request and is unable to track where an officer is at any given time unless the officer creates a call log. The officers’ are constantly patrolling the entire Town of Lunenburg’s streets, roads, businesses, schools which is all part of their daily shift patrol duties twenty-four hours a day seven days of the week… There is no requirement for an officer to log their daily patrol duties or get permission to drive down a driveway. This request is so vague and nonsensical for a request of a Lunenburg cruiser that drove down a roadway on April 4, 2024 at 8:00am in the Town of Lunenburg. [The Department] does not have possession, custody or control of the records requested. The mandatory disclosure provision of the Public Records Law only applies to information that is in the custody of the Department at the time the request is received. As a result, there is no obligation for the Department to create a record for a requester to honor a request… Current Appeal In his appeal, Mr. Burden states, “[w]e have been provided similar logs previously that provide detail of districts / sections and which officers were assigned to which sections / districts of town.” No Duty to Create Records Please be advised, under the Public Records Law the Department is not required to create a record in response to the request. See G. L. c. 66, § 6A(d). 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, please note that under the Public Records Law, a public employee is not required to answer questions, do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977).

Lieutenant Jeffrey M. Thibodeau SPR24/1487 Page 3 May 30, 2024 Conclusion Where the Department does not possess any additional records responsive to the April 4th request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Burden is 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). Sincerely, Manza Arthur Supervisor of Records cc: George Burden