Corey Kelleher v. Lunenburg, Town of - Police Department (SPR 20241510)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 3, 2024 SPR24/1510 Jeffrey M. Thibodeaux Police Lieutenant Lunenburg Police Department 655 Massachusetts Avenue Lunenburg, MA 01462 Dear Lieutenant Thibodeaux: 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 16, 2024, Mr. Kelleher requested, “…the lobby camera and or interview room footage and body camera of [an identified individual] on 3/2/2024 24LUN-74- AR[.]” The Department provided responses on May 16, 2024. Unsatisfied with the Department’s responses, Mr. Kelleher petitioned this office and this appeal, SPR24/1510, 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. 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. 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

Jeffrey M. Thibodeaux SPR24/1510 Page 2 June 3, 2024 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 16th responses In its May 16, 2024 response, the Department stated, “[t]here is no body worn camera recording for this incident and the lobby system only holds videos for 30 days and then the system purges itself. So, there is no footage from either of those requested.” On May 16, 2024, Mr. Kelleher responded, “[w]hy would this be destroyed?” On May 16, 2024, the Department further stated, “[i]t was not destroyed [an identified individual] must not have activated his body camera so there is no recording. Lobby only keeps video for 30 days unless saved and [an identified individual] did not place a save hold on it.” 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). In its May 16, 2024 responses, the Department did not provide information regarding proper record management practices and destruction. The May 16th responses raise 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, 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 do not exist and this office has no authority to compel the Department to create records, I will consider this administrative appeal closed. If Mr. Kelleher 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)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Jeffrey M. Thibodeaux SPR24/1510 Page 3 June 3, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Corey Kelleher