George and Jen Burden v. Lunenburg, Town of - Fire Department (SPR 20251821)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 2, 2025 SPR25/1821 Karen L. Weller Keeper of Records Town of Lunenburg Fire Department 655 Massachusetts Avenue Lunenburg, MA 01462 Dear Ms. Weller: I have received the petition of George and Jen 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 June 7, 2025, Mr. and Mrs. Burden sought the following: All call recordings of calls between [two identified individuals] and [an identified police detective] during the time [an identified individual] was with [an identified police detective] (calls to various State Police barracks) and all recordings of calls between [an identified police detective] and [two identified individuals] in the prior week to the meeting with [an identified police detective] on May 30, 2025. The Town responded on June 11, 2025 and June 24, 2025. Unsatisfied with the responses, Mr. and Mrs. Burden petitioned this office and this appeal, SPR25/1821, 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 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 L. Weller SPR25/1821 Page 2 July 2, 2025 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. See 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 June 11th and June 24th Responses In its June 11, 2025 response, the Department stated, “…[i]t will take me some time to find the calls that you requested. Probably by next week.” In its June 24, 2025 response, the Department stated, “…I can find no phone calls between [an identified individual] and [an identified police detective] in the week leading up to May 30, 2025. I also have no recordings from [an identified police detective] to the State Police.” Current Appeal In their June 24, 2025 petition to this office, Mr. and Mrs. Burden stated, “[w]e would like to appeal the response provided by [the Department] on the basis of a record not being provided when it had previously been indicated it would exist.” 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 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). In a June 26, 2025 email to this office from the Department, the Department confirmed that it has no records responsive to the request. Conclusion Where the Department has confirmed that is does not possess records responsive to the request, and has no duty to create records responsive to the request, 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 share 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).

Karen L. Weller SPR25/1821 Page 3 July 2, 2025 Sincerely, Manza Arthur Supervisor of Records cc: George and Jen Burden