George and Jen Burden v. Lunenburg, Town of - Police Department (SPR 20250807)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 7, 2025 SPR25/0807 Sean Zrate Acting Lieutenant Lunenburg Police Department 655 Massachusetts Avenue Lunenburg, MA 01462 Dear Lieutenant Zrate: 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 March 11, 2025, Mr. Burden requested “any and all records / documents pertaining to complaints filed by [a named individual] or [a named organization] from 01-01-10 to 03-11-25.” The Department responded on March 21, 2025. Unsatisfied with the Department’s response, Mr. Burden petitioned this office, and this appeal, SPR25/0807, 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 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 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 SPR25/0807 Page 2 April 7, 2025 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 21st Response In its March 21, 2025 response, the Department explains that it is withholding two police reports pursuant to Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its March 21st response, under Exemption (a), the Department explains the following concerning the two withheld reports: Lunenburg police report # 24LUN-601-OF Exemption (a) applies to records that are “specifically or by necessary implication exempted from disclosure by statute.” 1. The basis of Lunenburg police report # 24LUN601-OF is harassment of a person(s), because they fall under a specific listed statute, whereas the disclosure of this report would allow for the continued harassment to the person named in this report. Such listed statutes expressly limit the dissemination of particular records to a defined group of individuals or entities, neither of which the Burden’s

Sean Zrate SPR25/0807 Page 3 April 7, 2025 are. 2. Lunenburg police report #24LUN-601-OF contains CORI information about an individual, which is restricted. Lunenburg police report # 24LUN-601-OF Exemption (a) applies to records that are “specifically or by necessary implication exempted from disclosure by statute.” Lunenburg police report # 12LUN-630-OF contains protected information by statute that is maintained by this police department in a manner that shall assure its confidentiality. Based on the Department’s response, it is unclear which statute or statutes the Department is referring to under Exemption (a) in order to withhold the responsive 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”). The Department must clarify what statute it claims either specifically, or by necessary implication, permits withholding of the responsive records, and must explain with specificity how such a statute applies. See G. L. c. 4, § 7(26)(a). 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 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. Sincerely, Manza Arthur Supervisor of Records cc: George Burden