George and Jen Burden v. Lunenburg, Town of - Police Department (SPR 20243212)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 11, 2024 SPR24/3212 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.” Prior Appeal This request was the subject of a prior appeal. See SPR24/3087 Determination of the Supervisor of Records (November 26, 2024). In my November 26th determination, I found that it was unclear if the Department possesses any records responsive to the request. The Department responded on November 26, 2024, providing records. Unsatisfied with the response, Mr. Burden petitioned this office and this appeal, SPR24/3212, 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 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 SPR24/3212 Page 2 December 11, 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. The Department’s November 26th Response In its November 26, 2024 response, the Department provided records. Current Appeal In his appeal, Mr. Burden states, “[t]he response from [the Department] is not responsive to our request. We are asking for the citations with the narrative description of the incidents. Please note this has been removed from some of the documents provided.” Burden of specificity Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the redacted information is exempt from disclosure under the Public Records Law. Based on the Department’s response, it is unclear what exemption under the Public Records Law the Department is claiming to withhold “the narrative description of the incidents” of the requested records from disclosure. It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold or redact a requested record. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding is based…”); 950 C.M.R. 32.06(3). Consequently, I find the Department must identify an exemption and explain with specificity how the exemption applies to redact the records. G. L. c. 66, § 10(b). 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).

Lieutenant Jeffrey M. Thibodeau SPR24/3212 Page 3 December 11, 2024 Sincerely, Manza Arthur Supervisor of Records cc: George Burden