George and Jen Burden v. Lunenburg, Town of - Police Department (SPR 20243074)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 22, 2024 SPR24/3074 Jeffrey M. Thibodeau Interim Chief of Police Lunenburg Police Department 655 Massachusetts Avenue Lunenburg MA, 01462 Dear Chief Thibodeau: I have received the petition of Jen and 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 October 21, 2024, Mr. and Mrs. Burden requested “… the body camera footage from [a Department officer] and his police report for Saturday, October 19 … the entire footage from the time [the officer] arrived at the end of Cortland Circle until the time he left …” Previous Appeal This request was the subject of a previous appeal. See SPR24/2998 Determination of the Supervisor of Records (November 7, 2024). SPR24/2998 was closed based on the understanding that the Department intended to provide a supplemental response. The Department provided a response on November 8, 2024. Unsatisfied with the response, Mr. and Mrs. Burden petitioned this office and this appeal, SPR24/3074, 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. 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. Thibodeau SPR24/3074 Page 2 November 22, 2024 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 November 8th Response In its November 8, 2024 response, the Department informed Mr. and Mrs. Burden that it had “… identified the format issue and have fixed the formatting problem.” The Department provided Mr. and Mrs. Burden with a link through which to download the requested video recording. Current Appeal In their November 12, 2024 petition to this office, Mr. and Mrs. Burden allege that the responsive record provided by the Department has been “modified.” In support of this allegation, Mr. and Mrs. Burden cite a “blurry timestamp,” which appears in only a portion of the responsive video recording. Mr. and Mrs. Burden further claim that the timeline of the video recording does not match that of certain dispatch records reviewed by Mr. and Mrs. Burden. In an email dated November 13, 2024, the Department confirmed that all responsive records had been provided “… in separate formats, multiple times.” The Department further clarified that “[t]here have been no redactions or alterations made to this video …” and that “[it] also included the timeline report there is nothing further [it] can provide …” No Duty to Create Records; Presumption of Honesty and Impartiality Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y. Gen. 157, 165 (May 18, 1977). 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). Mr. and Mrs. Burden are further advised, there is a presumption that public officials perform their duties in an honest and impartial manner. LaPointe v. License Bd. of Worcester, 389 Mass. 545, 459 (1983); see also Konover Mgt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 326 (1992) (presumption that public officials will perform honestly and impartially).

Jeffrey M. Thibodeau SPR24/3074 Page 3 November 22, 2024 Conclusion Given that all responsive records have been provided and this office has no authority to compel the Department to create records, I will now consider this administrative appeal closed. If Mr. and Mrs. Burden are 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). Sincerely, Manza Arthur Supervisor of Records cc: Jen and George Burden