George and Jen Burden v. Lunenburg, Town of (SPR 20243363)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 27, 2024 SPR24/3363 Carter Terenzini Interim Town Manager Town of Lunenburg 17 Main Street Lunenburg, MA 01462 Dear Mr. Terenzini: I have received the petition of Jen and George Burden appealing the response of the Town of Lunenburg (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 8, 2024, Mr. and Ms. Burden requested: [A] copy of all pages of the passbook and/or all bank statements to the tri-party bank account that you, as the Treasurer of Lunenburg, are required to hold in the event of a failure to the wastewater system of the Village at Flat Hill homeowners association. The requirement for you to hold the account is per the permit issued by the Town of Lunenburg for the development of the homeowners association. The Town responded on October 22, 2024, providing a record responsive to the request. Unsatisfied with the Town’s response and claiming the Town possesses additional responsive records, Mr. and Ms. Burden appealed, and this case, SPR24/3363, 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

Carter Terenzini SPR24/3363 Page 2 December 27, 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 Town’s October 22nd response In its October 22, 2024 response, the Town provided a record responsive to the request. Current Appeal In their appeal to this office, Mr. and Ms. Burden state: The request is based on not being provided the documents requested. This request relates to obtaining documentation of a tri-party bank account which should contain approximately $60K that the Treasurer of Lunenburg was required to hold in the event of a failure to the wastewater system of the Village at Flat Hill homeowners association. The requirement for the Treasurer to hold the account is per the special permit issued by the Town of Lunenburg for the development of the homeowners association as per the registry of deeds. The Town is advised that 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). Based on the information provided in Mr. and Ms. Burden’s appeal petition, it is unclear whether the Town possesses additional responsive records. The Town must clarify this. Conclusion Accordingly, the Town is ordered to provide Mr. and Ms. Burden with a response to their request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such 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.

Carter Terenzini SPR24/3363 Page 3 December 27, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Jen and George Burden