George and Jen Burden v. Lunenburg, Town of - Police Department (SPR 20241547)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 5, 2024 SPR24/1547 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 May 10, 2024, Mr. Burden requested the following; [1.] Any and all records related to discussions [a named individual] had with [a named individual] from Perkins & Anctil between January 1, 2022 through September 30, 2023 regarding hunting on the 160 +/- acres of land which is owned by the Village at Flat Hill homeowners association [2.] Any and all records related to discussions [a named individual] had with any attorney from Perkins & Anctil between January 1, 2022 through September 30, 2023. The Department responded on May 14, 2024. Unsatisfied with the response, Mr. Burden petitioned this office and this appeal, SPR24/1547, 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). 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 SPR24/1547 Page 2 June 5, 2024 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 custodian must provide the responsive records. The Department’s May 14th Response In its May 15, 2024 response, the Department stated, “[t]he requested records is not in existence at the Lunenburg Police Department. This 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 request to honor a request…. As a result, the Department is unable to respond to your above request.” Current Appeal In his appeal, Mr. Burden states, “[w]e are appealing the request as we believe documents do exist based on a Perkins & Anctil invoice to the Village at Flat Hill (a homeowner’s association in Lunenburg, MA that we are a member of)…” Based on Mr. Burden’s appeal, it is unclear if the Department possesses any records responsive to the request. 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). 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). The Department must clarify whether it possesses records responsive to the request. 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 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 Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Lieutenant Jeffrey M. Thibodeau SPR24/1547 Page 3 June 5, 2024 Sincerely, Manza Arthur Supervisor of Records cc: George Burden