George and Jen Burden v. Lunenburg, Town of - Police Department (SPR 20250778)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 28, 2025 SPR25/0778 Lieutenant Sean Zrate Lunenburg Police Department 655 Massachusetts Avenue Lunenburg, MA 01462 Dear Lieutenant Zrate: I have received the petition of George and Jennifer 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 March 8, 2025, Mr. and Ms. Burden requested: [1] [A]ny and all records relating to disciplinary and other type of complaints filed against or reported on [an identified individual;] [2] [A]ny and all records pertaining to a resident of Lunenburg who aimed a firearm at a citizen which either occurred in Lunenburg or occurred in another town in which LPD would have been made aware. The Department responded on March 10, 2025, stating that Item 1 could be found at the P.O.S.T. Commission’s website and requesting more information for Item 2. On March 10, 2025, Mr. and Ms. Burden responded with more information on both items. Finally, the Department responded to Mr. and Ms. Burden on March 20, 2025. Unsatisfied with the Department’s March 20th response, Mr. and Ms. Burden petitioned this office and this appeal, SPR25/0778, 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). 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 Sean Zrate SPR25/0778 Page 2 March 28, 2025 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 March 10th and March 20th Responses In the Department’s March 10, 2025 response, it provided a link to the P.O.S.T. Commission’s website for Item 1 and asked for more information regarding Item 2. Mr. and Ms. Burden responded on March 10, 2025, stating: For the first item, we are requesting all documents the LPD has regarding the incidents for [an identified individual]. We are requesting the details of the incidents and not just a summary as provided on the link you provided. Please provide any and all records relating to disciplinary and other type of complaints filed against or reported on [an identified individual] that the LPD has. For the second item - it was an incident regarding a Lunenburg resident who pointed a gun at another driver during a road rage situation in Shrewsbury in May 2024. We have been unable to find details in any local news. Please provide all records that the LPD has regarding the situation. Item 1 In its March 20, 2025 response, the Department withheld responsive records for Item 1 under Exemption (c) of the Public Records Law. Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c).

Lieutenant Sean Zrate SPR25/0778 Page 3 March 28, 2025 Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. Under Exemption (c), the Department stated, “[e]mployee records that have been requested contain materials that are considered private and releasing them constitutes an unwarranted invasion of personal privacy.” The Department is advised that under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. See G. L. c. 66, § 10(b)(iv) (a 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, including the specific exemption or exemptions upon which the withholding is based”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department’s response did not contain the specificity required in a denial of access to public records. Based on the Department’s response, it is unclear how the withheld records contain intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the Department did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. As a result, I find that the Department did not meet its burden of specificity in withholding the records under Exemption (c) of the Public Records Law. In addition, the Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Therefore, the Department must identify the record(s) it has in its possession that

Lieutenant Sean Zrate SPR25/0778 Page 4 March 28, 2025 it withheld under Exemption (c). Item 2 In its March 20, 2025 response, the Department states, “[w]e have no records to provide to you without more information. I would suggest you contact Shrewsbury.” Current Appeal In their appeal to this office, Mr. and Ms. Burden state, “[t]he Lunenburg Police should at a minimum have documents regarding the suspension of the individual’s license to carry firearms and related documents.” In a telephone call between a staff attorney of the Public Records Division and the Department on March 27, 2025, the Department stated it needed clarification regarding the scope of Mr. and Ms. Burden’s request. Please be advised that it is valid for the custodian of records to suggest a “reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably.” See G. L. c. 66, § 10(b)(vii). Consequently, Mr. and Ms. Burden are encouraged to provide the Department with the needed clarification regarding the records they seek. G. L. c. 66, § 10(a)(i) (the request must reasonably describe the public records sought). 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). 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), (b)(ii). In this case, Mr. and Ms. Burden have not provided the Department with sufficient particularity required for the Department to identify the documents they are seeking. Mr. and Ms. Burden may wish to provide clarification regarding the specific records they are seeking. Once they have provided the needed clarification, the Department must provide a response within 10 business days. Conclusion Accordingly, the Department is ordered to provide Mr. and Ms. Burden with a response to Item 1 of the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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.

Lieutenant Sean Zrate SPR25/0778 Page 5 March 28, 2025 Sincerely, Manza Arthur Supervisor of Records cc: George and Jennifer Burden