George and Jen Burden v. Lunenburg, Town of (SPR 20242397)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 5, 2024 SPR24/2397 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 August 5, 2024, Mr. Burden requested, “[p]lease provide all correspondences the town has had with those attorneys. We do not understand how they can represent the HOA and [named individual] at the same time. Are town attorneys involved? There are some concerns of possible legal improprieties going on to harass us further so be careful.” The Town provided a response on August 5, 2024. Unsatisfied with the Town’s response, Mr. Burden petitioned this office and this appeal, SPR24/2379, 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. See 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

Heather R. Lemieux SPR24/2379 Page 2 September 5, 2024 If there are any fees associated with a response a written, good faith estimate must be provided. See 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 Town’s August 5th response In its August 5, 2024 response, the Town states, “… I am most hopeful you can provide me with [the specific] name of the individual attorneys or the name of the firm(s) you are referring to that I might more appropriately respond[.]” On August 5, 2024, Mr. Burden responded by providing the name of a law firm and more information regarding his public records request. Current appeal In his appeal, Mr. Burden states that the town did not provide records responsive to the request within 10 business days. Timeliness in providing records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Mr. Burden submitted his request on August 5, 2024, and provided the Town with the needed clarification on the same day, it is unclear why the Town has not provided the responsive records. 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).

Heather R. Lemieux SPR24/2379 Page 3 September 5, 2024 Consequently, I find the Town must provide an estimated date as to when it intends to complete the search and provide the outstanding records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Town must provide responsive records on a rolling basis. 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 ten (10) business days. A copy of any such 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: Heather R. Lemieux