George and Jen Burden v. Lunenburg, Town of - Fire Department (SPR 20250831)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 8, 2025 SPR25/0831 Karen Weller Keeper of Records Lunenburg Fire Department 655 Massachusetts Avenue Lunenburg, MA 01462 Dear Ms. Weller: I have received the petition of Jen and George Burden appealing the response of the Lunenburg Fire 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 7, 2025, Mr. and Mrs. Burden requested “…any and all documentation regarding voice recording equipment failures. This documentation should include but not limit to reports, logs, emails/letters/incident reports, etc. that were sent to or from Lunenburg Safety Building staff regarding voice recording equipment failures or references of same.” Previous Appeal This request was the subject of a previous appeal. See SPR25/0802 Determination of the Supervisor of Records (March 26, 2025). In my March 26th determination, I closed SPR25/0802 in light of the Department providing a response on March 25, 2025. Unsatisfied with the Department’s response, Mr. and Mrs. Burden petitioned this office, and this appeal, SPR25/0831, 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

Karen Weller SPR25/0831 Page 2 April 8, 2025 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. See 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 25th Response In its March 25, 2025 response, a representative for the Department provided a responsive record in the form of a one-page letter dated November 5, 2024. Upon review, the letter is from an identified representative of a private business entity engaged in maintaining radio and phone voice recording services for the Department, and indicates that the Department’s phone recorder system was out of service from January 1, 2023 to June 26, 2023. The Department representative further provides the following: As I had stated in [a previous] email . . . to Mr. Burden we had a malfunction of our phone lines during the time he requested records and provided a letter from Equature who maintains our phone recordings stating the same which I have also attached here. I was unaware of the issue since we rarely received any requests for phone calls. Since the phone line in question was on the police side, I don’t have any emails or documentation to show that the company was called about the issue. We also had a different IT technician at the time who handled the incident. He is no longer employed with the Town and I have no way of reaching him. . . . [T]here would be no way to manufacture a phone call. Subsequently, it is my understanding that the Department confirmed that it does not possess additional records responsive to the request. Current Appeal In their appeal petition, Mr. and Mrs. Burden contend the following: We did not ask for a recording to be manufactured. We asked for the dates the equipment had failed. We have been told on two separate occasions recordings have not been available because of failed equipment. The date of the equipment failure was extended upon the second request. We would like to understand all of the dates of equipment failures versus additional dates being added on as we make the requests. We request any and all documents related to the recording equipment failures. . . . We would like the list of all dates of bad equipment to understand which recordings are available.

Karen Weller SPR25/0831 Page 3 April 8, 2025 Records in Existence 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). Further, 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). Where the Department has confirmed that it has provided all records in its possession responsive to the Burdens’ request and has identified a department that may be in possession of additional responsive records, I find that the Department has met its burden in responding to the request. See G. L. c. 66, § 10(b)(iii) (a records access officer must identify the agency or municipality that may be in possession, custody or control of the public record sought, if known). Conclusion Accordingly, I will 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