George and Jen Burden v. Lunenburg, Town of - Fire Department (SPR 20243076)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 25, 2024 SPR24/3076 Karen L. Weller Administrative Assistant/Keeper of Records Lunenburg Fire Department 655 Massachusetts Avenue Lunenburg, MA 01462 Dear Ms. Weller: I have received the petition of George Burden 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 October 11, 2024, Mr. Burden requested, “all recordings of conversations [a named individual] and / or [a named individual] had regarding the Burden family or any individual member of the Burden family with anyone from the Fitchburg Court between 05-15-23 and 07-15-23.” The Department responded on November 5 and November 12, 2024. Unsatisfied with the responses, Mr. Burden petitioned this office and this appeal, SPR24/3076, was opened as a result. While this appeal was pending, the Department provided a supplemental response on November 14, 2024. 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. 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 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 SPR24/3076 Page 2 November 25, 2024 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 Responses In its November 5, 2024 response, the Department provided records. In its November 12, 2024 response, the Department stated, “[i]n response to Mr. Burden’s Public Records request, I had sent a letter from [Equature] who handles our phone and radio monitor system that indicated that we experienced a problem with the phone system during the time period that Mr. Burden requested records which I have attached. We had not known that the phone system was down until phone records were requested then we discovered we could not retrieve them. The phone system was fixed on June 26, 2023. I sent Mr. Burden the recordings I had after the 26th of June. We did not find any phone records between [a named individual] and the Fitchburg District Court in any recordings on June 26th or after. I can only speculate that those particular phone calls were made prior to June 26, 2023.” Current Appeal In his appeal, Mr. Burden states, “[w]e absolutely want to continue with this appeal to have a formal reply provided now that another equipment / extension of an equipment has been indicated in side emails after questioning the first response to our request. All very suspicious which leads to us feeling something is being hidden / covered-up and we are being attacked but will get to the bottom of it.” Subsequent to the opening of this appeal, the Department sent an email to this office on November 14, 2024 and stated: Mr. Burden has reached out to me several times over the past several years for phone recordings. Before Mr. Burden requested phone records, I didn’t check the phone recordings on a daily basis and was unaware that there was an issue with the recorded phone lines. Once we discovered that the phone records were unavailable, efforts were made to correct the situation. I had sent him a couple of letters from our [r]ecording company Equature stating the time period he was requesting were unavailable. Mr. Burden was inquiring about a recording that was back in May of 2023. We sent him a letter from Equature saying that time was unavailable, see attached 1. He then reached out to me on October 11, 2024 looking for phone records from May 15, 2023 to July 15, 2023 looking for a phone conversation between [a named individual] and the Fitchburg District Court. I went through the recordings and did not find the phone call he was looking for and again reached out to Equature to get an updated letter stating that the that the recordings weren’t available until June 26, 2023, see attached #2. I

Karen L. Weller SPR24/3076 Page 3 November 25, 2024 responded to him and told him that I did not find any phone recordings between [a named individual] and the Fitchburg District Court. I had sent him what I had after June 26, 2023. I’m sorry I couldn’t find what he was looking for but there is no way I could manufacture a phone call. No Duty to Create Records Please be advised, under the Public Records Law the School is not required to create a record in response to the request. See G. L. c. 66, § 6A(d). 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). Additionally, please note that under the Public Records Law, a public employee is not required to answer questions, do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Conclusion Where the Department does not possess any additional records responsive to the October 11th request, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. If Mr. Burden 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). Sincerely, Manza Arthur Supervisor of Records cc: George Burden