George and Jen Burden v. Lunenburg, Town of - Police Department (SPR 20243087)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 26, 2024 SPR24/3087 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 October 31, 2024, Mr. Burden requested, “all police reports of vehicle speeding violations issued by [a named individual] between 02/01/16 and 02/29/16 on Lancaster Ave.” The Department responded on November 5 and November 6, 2024, providing records. Unsatisfied with the responses, Mr. Burden petitioned this office and this appeal, SPR24/3087, 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. 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. 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 SPR24/3087 Page 2 November 26, 2024 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 and stated, “[a named individual] made five motor vehicle stops and issued three warnings and two money citations totaling $365.00. There were ten offenses recorded from these five stops.” In its November 6, 2024 response, the Department provided additional records and stated, “[h]ere is the requested information on your motor vehicle stop along with the public press log for 02/01/2016-02/29/2016 involving [a named individual]’s motor vehicle stops in that time period. As far as the citations of other individuals’ motor vehicle stops, I am not including that under [Exemption (c)] that constitutes an unwarranted invasion of their personal privacy… If you seek that information all requests for driver history information shall be submitted to the Massachusetts Registry of Motor Vehicles.” Current Appeal In response to the Department’s November 6th email, Mr. Burden stated, “[w]e are not seeking driver history information and do not care about any of the driver information, e.g. we do not need the driver’s name, address, license plate number, other PII, or any driver info. That information can be completely redacted… Please provide the police reports with any and all driver information redacted… Two documents [the Department has] provided for this request do not appear to match…” In his appeal, Mr. Burden states, “[t]he basis for the request of an appeal is that [the Department] has not provided the requested redacted documents. [The Department]’s original response was not responsive to the request. However… [the Department] claimed an exemption for an invasion of privacy concern which is duly respected, however, we have asked for any and all personal identifiable information to be redacted. Therefore his exemption does not apply. Please compel [the Department] to provide the documents requested with any and all PII redacted.” 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.

Lieutenant Jeffrey M. Thibodeau SPR24/3087 Page 3 November 26, 2024 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). Sincerely, Manza Arthur Supervisor of Records cc: George Burden