Thomas Siefert v. Shutesbury, Town of - Police Department (SPR 20250527)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 25, 2025 SPR25/0527 Chief Kristin Burgess Shutesbury Police Department 1 Cooleyville Road Shutesbury, MA 01072 Dear Chief Burgess: I have received the petition of Thomas Siefert appealing the response of the Shutesbury 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 February 21, 2025, Mr. Siefert sought, in two separate requests: [1] [A]ll communications, including written and audio communications, to or from the Shutesbury Police Department on Saturday, June 8, 2024, regarding the circumstances that led [to an identified incident][;] [2] [A] copy of the police report that [an identified Department employee] wrote was “finished” in [a] message to [Mr. Siefert] on July 8, 2024[.] The Department provided responses on February 21, 2025. Unsatisfied with the responses, Mr. Siefert petitioned this office and this appeal, SPR25/0527, 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. 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 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

Chief Kristin Burgess SPR25/0527 Page 2 February 25, 2025 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 February 21st Responses In its February 21, 2025 responses, the Department informed Mr. Siefert that he had previously been provided with all records responsive to his requests. Current Appeal In his February 24, 2025 petition to this office, Mr. Siefert contended that additional responsive records existed. In email communications to this office on February 24, 2025, the Department confirmed that it had provided Mr. Siefert with all responsive records in its custody. The Department suggested that additional responsive records might exist in the custody of the Massachusetts State Police or the Shelburne Dispatch Center. 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 the Department has provided all responsive records and this office has no authority to compel the Department to create records, I will now consider this administrative appeal closed. If Mr. Siefert is 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).

Chief Kristin Burgess SPR25/0527 Page 3 February 25, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Thomas Siefert