George and Jen Burden v. Lunenburg, Town of - Police Department (SPR 20250334)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 10, 2025 SPR25/0334 Sean Zrate Acting Lieutenant Lunenburg Police Department 655 Massachusetts Avenue Lunenburg, MA 01462 Dear Lieutenant Zrate: I have received the petition of Jen and 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 December 7, 2024, Mr. and Mrs. Burden requested “… video footage from all security cameras that cover any portion of the front side of the Lunenburg Safety building for [a specified date and time]. Please identify each camera the video footage is being provided for.” Prior Appeals This request was the subject of prior appeals. See SPR25/0073 Determination of the Supervisor of Records (January 10, 2025) and SPR25/0117 Determination of the Supervisor of Records (January 17, 2025). In my January 17th determination, I found that the Department had not met its burden to withhold responsive records under Exemption (n) of the Public Records Law, and ordered it to provide a further response. The Department provided responses on January 29 and February 3, 2025. Unsatisfied with the responses, Mr. and Mrs. Burden petitioned this office and this appeal, SPR25/0334, 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 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

Sean Zrate SPR25/0334 Page 2 February 10, 2025 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 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 January 29th and February 3rd Responses In its January 29, 2025 response, the Department provided Mr. and Mrs. Burden with a link through which to access the responsive video recordings. On February 2, 2025, Mr. and Mrs. Burden informed the Department that they were unable to download the responsive records. In its February 3, 2025 response, the Department advised Mr. and Mrs. Burden that it had changed certain settings to make the responsive records accessible, and that in the future, the Department would be willing to provide records in an alternative format. Current Appeal In their February 4, 2025 petition to this office, Mr. and Mrs. Burden claim that “… the video provided does not meet the request.” In email communications to this office on February 5 and February 7, 2025, the Department stated that certain video recordings responsive to the request had been destroyed, following the Department’s December 10th denial of Mr. and Mrs. Burden’s request. The Department clarified that it had complied with the records retention schedules promulgated by the Supervisor of Records and retained all surveillance video recordings for at least 30 days following their creation. See G. L. c. 66, § 8; G. L. c. 66, § 13; G. L. c. 66, § 15. With regard to the video recordings which were provided to Mr. and Mrs. Burden, the Department stated: These videos were preserved after [an identified individual] filed a letter of complaint with this department alleging that he was pushed by a police officer … The only videos the Lunenburg Police Department retained as records of this event are what we have provided Mr. and Mrs. Burden, which do not satisfy the length of time included in their request.

Sean Zrate SPR25/0334 Page 3 February 10, 2025 No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends only 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). Conclusion Given that all responsive records which exist have been provided, and this office has no authority to compel the Department to create records, I will now consider this administrative appeal closed. If Mr. and Mrs. Burden are not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Jen and George Burden