George and Jen Burden v. Lunenburg, Town of - Police Department (SPR 20243264)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 13, 2024 SPR24/3264 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 November 21, 2024, Mr. Burden requested the following: [1.] … the body worn camera video footage (with date time stamp embedded in the video) from [a named individual] during his interactions with George on 11- 20-24. [2.] … the video (with date time stamp embedded in the video) from the interview room when George met with [a named individual] on 11-20-24. The Department responded on November 26, 2024, providing records. Unsatisfied with the response, Mr. Burden petitioned this office and this appeal, SPR24/3264, 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

Lieutenant Jeffrey M. Thibodeau SPR24/3264 Page 2 December 13, 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 26th Response In its November 26, 2024 response, the Department provided records and stated, “[t]he interview footage has been sent to your email and should be downloaded before its expiration in seven days.” Current Appeal In his appeal, Mr. Burden states, “[t]he basis of the appeal is we would like the response provided in one email / letter versus being piece mealed. We also would like any reductions identified and the reasons for such provided.” Additionally, in an email to the Department on December 3, 2024, Mr. Burden stated, “[w]e are not finding an indication of the body worn camera footage in your response. Also, can you please explain why the voice of the recording of the interview room does not align with the actual footage of the video and why the date timestamp embedded in the video does not align with the date time stamp that is shown below the video as being played.” Based on Mr. Burden’s appeal, it is unclear if the Department possesses any additional 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 additional records responsive to the request. 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 SPR24/3264 Page 3 December 13, 2024 Sincerely, Manza Arthur Supervisor of Records cc: George Burden