George and Jen Burden v. Lunenburg, Town of - Fire Department (SPR 20251938)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 10, 2025 SPR25/1938 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 July 2, 2025, Mr. and Mrs. Burden requested “… the copy of your recording between [two identified individuals] that occurred just prior to 7PM today.” The Department responded on July 3, 2025. Unsatisfied with the response, Mr. and Mrs. Burden petitioned this office and this appeal, SPR25/1938, was opened as a result. Subsequent to the opening of this appeal, the Department provided a supplemental response on July 3, 2025. 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. 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 SPR25/1938 Page 2 July 10, 2025 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 July 3rd Responses In its initial July 3, 2025 response, the Department informed Mr. and Mrs. Burden that it possessed no responsive records. In its subsequent July 3, 2025 response, the Department clarified, “[t]here are certain phones on the police side that are recorded. If I can’t find the recording, it means that the phone that [an identified individual] was on is not recorded so I can’t access the records, because they are not there.” Current Appeal In their July 3, 2025 petition to this office, Mr. and Mrs. Burden stated, “… dispatch told us that all lines are / should be being recorded at the Lunenburg Police Department. [sic]” Mr. and Mrs. Burden requested that this office conduct a review of “… all available surveillance or body camera footage associated with the incidents in question.” In its supplemental response on July 3, 2025, the Department stated: [T]here are certain phones on the Police side that are recorded unlike our previous provider Equature. With Equature there was a single phone line that was recorded and as long as you were on that phone line it didn’t matter how many times you forwarded it was still recorded. In February of 2025, the Town install a new phone system. Instead of one line being recorded, there are certain phones on the Police side that are recorded. If I can’t find a conversation between certain parties, that means that the particular phone was not recorded. I have reminded [Mr. Burden] of this several times. The information he was looking for was unable to be found. I’m pretty sure that our dispatch center is unaware that we only have certain phone on the police side that are recorded. And as I have said before, it is illegal to make up records. 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).

Karen Weller SPR25/1938 Page 3 July 10, 2025 Conclusion Given that the Department possesses no records responsive to Mr. and Mrs. Burden’s request and this office has no authority to compel the Department to create records, 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 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