George and Jen Burden v. Lunenburg, Town of - Police Department (SPR 20243189)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 10, 2024 SPR24/3189 Jeffrey M. Thibodeau Interim Chief of Police Lunenburg Police Department 655 Massachusetts Avenue Lunenburg, MA 01462 Dear Interim Chief 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 November 8, 2024, Mr. Burden requested the following: Please provide the video recording to the lobby of the Lunenburg Police Department for this past Sunday (November 3rd) in the early evening (6:30 PM ish - exact time should be in report) when [an individual] came to report an instance of harassment... The Department responded on December 6, 2024. Unsatisfied with the Department’s response, Mr. Burden petitioned this office, and this appeal, SPR24/3189, was opened as a result. Subsequent to the opening of this appeal, the Department provided two further responses on November 26, 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. 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

Jeffrey M. Thibodeau SPR24/3189 Page 2 December 10, 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. Current Appeal In his appeal petition, Mr. Burden contends that “[w]e would like to appeal our public records request due to a non response from ... regarding the lobby video not being provided.” In an email to this office subsequent to the opening of this appeal, Mr. Burden further states that “[w]e are not asking for the body cam video but rather the lobby video which we still have not received.” He goes on to state that “[w]e have searched our email or anything from Verkada and are not finding the video.” The Department’s November 12th November 26th Responses In multiple responses on November 12, 2024, the Department provides an incident report, and explains the following: The BWC video cannot be sent to your email, see the attached message. So, you can pick up the DVD of the video at the front lobby of the Public Safety Building. In an email to this office and Mr. Burden on November 26, 2024, the Department further explains the following: The Burden’s were sent the below email on 11/12/24 at 9:58am explaining the videos and their expiration. The lobby video from Verkada was sent at 11/12/24 9:56am. The videos need to be downloaded on the receiver’s side to preserve the video. The lobby video sent by email expired on 11/19/24 which was explained. ... The lobby video email could be in the receiver’s spam folder if not received in their email’s inbox and the link subsequently expired on 11/19/24. In a second email to this office and Mr. Burden on November 26, 2024, the Department further explains the following: I have just sent the lobby video again to both [the Public Records Division] and The Burden’s via the Verkada email system. Please download the video before its expiration of 11/2/24 [sic]. I have also provided Verkada activity log that shows that an external user ... Mr. Burden’s email address, viewed the video on November 13 at 5:41:55pm.

Jeffrey M. Thibodeau SPR24/3189 Page 3 December 10, 2024 Records in Existence Please be advised, 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, 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). However, in accordance with the Public Records Law, 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). Unclear Appeal Based on the foregoing, where the Department has provided the responsive records, I find that the basis of Mr. Burden’s appeal is unclear. Mr. Burden is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). In this case, the Department has twice provided the records to Mr. Burden via email, and has made records available for pick up. This office encourages Mr. Burden to communicate directly with the Department in order to arrange receipt of the records responsive to his request. If unresolved issues remain after Mr. Burden and the Department communicate further as described above, Mr. Burden may file an appeal within ninety (90) days, describing his specific objections to the Department’s response. See 950 C.M.R. 32.08(1). Conclusion Based on the above, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: George Burden