Corey Kelleher v. Lunenburg, Town of - Police Department (SPR 20241847)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 9, 2024 SPR24/1847 Karen L. Weller Administrative Assistant/EMS Coordinator Lunenburg Fire Department 655 Massachusetts Avenue Lunenburg, MA 01462 Dear Ms. Weller: I have received the petition of Corey Kelleher appealing the response of the Lunenburg Fire 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 17, 2024, Mr. Kelleher requested the following: [T]he recording of the phone call(s) to or by, [an individual] made by Lunenburg Police Department ... on 03/30/12021 for the report of 21LUN-262-OF [and] 21- 18973[.] In addition I would also like to request all phone call(s) that were made by, to, or from the school [two named individuals] on the day of 3-30-2021. Following further correspondences, the Department responded on June 11, 2024, providing numerous responsive records. The Department provided a further response on June 13, 2024. Unsatisfied with the Department’s responses, Mr. Kelleher petitioned this office, and this appeal, SPR24/1847, 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. Attorney 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

Karen L. Weller SPR24/1847 Page 2 July 9, 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 June 11th and 13th Responses In its June 11, 2024 response, the Department provides numerous responsive records. In its June 13, 2024 response, the Department states that it “looked back through the recordings for the day in question and we had a malfunction with our recorded phone lines on that day, so nothing recorded.” Current Appeal In his appeal petition, Mr. Kelleher contends that “I find it appalling and disgusting that the Lunenburg Police has had malfunctions with their recorded lines on this day.” Records in Existence Please be 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). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). In an email to this office on June 28, 2024, the Department confirmed that “on the date in question we had a malfunction with our recorded phone lines.” Additionally, in an email to this office on July 2, 2024, the Department further confirmed that the Department “sent him all the recordings that [the Department] had except for the recorded phone line which malfunctioned.” Conclusion Where the Department confirmed that it does not possess additional records responsive to Mr. Kelleher’s request, and where this office has no authority to require the Department to create records, I will now 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).

Karen L. Weller SPR24/1847 Page 3 July 9, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Corey Kelleher