George and Jen Burden v. Lunenburg, Town of - Police Department (SPR 20252129)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 29, 2025 SPR25/2129 Lieutenant Sean Zrate Records Access Officer Lunenburg Police Department 655 Massachusetts Avenue Lunenburg, MA 01462 Dear Lieutenant Zrate: I have received the petition of George and Jen Burden (Mr. and Ms. 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 July 3, 2025, Mr. and Ms. Burden requested, “…access to and copies of any and all records, documents, reports, or communications related to the placement of [an identified individual] on any form of “danger list” or similar designation by the Lunenburg Police Department. Specifically, we request”: [1] All documents indicating when and why [an identified individual] was placed on such a list[;] [2] The identity of the individual(s) or agency(ies) who reported or recommended this designation[;] [3] Any internal policies, procedures, or criteria used by the Lunenburg Police Department in making such designations[;] [4] Any communications, emails, or memoranda referencing [an identified individual] in relation to this designation. The Department responded on July 17, 2025. Unsatisfied with the response, Mr. and Ms. Burden petitioned this office and this appeal, SPR25/2129, was opened as a result. Subsequently, On July 28, 2025, the Department provided Mr. and Ms. Burden with an additional response. 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 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 SPR25/2129 Page 2 July 29, 2025 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 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 July 17th and July 28th Responses On July 17, 2025, the Department stated, “[p]lease see attached.” On July 28, 2025, the Department stated that it has “[n]o [r]ecords to [p]rovide” for Items 1 through 4. Current Appeal In their July 18, 2025 appeal to this office, Mr. and Ms. Burden stated, “[d]espite the statutory requirement under Massachusetts Public Records Law to respond within 10 business days[,] Mr. Zrate’s response does not address the substance of our request…” On July 28, 2025, Mr. and Ms. Burden stated, “[the Department] does not address the substance of our request and instead cites deneral limitations of the law without providing any of the records we requested or a valid exemption for withholding.” 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). Conclusion Where the Department has confirmed it has no records responsive to Mr. and Ms. 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 Ms. Burden are not satisfied with the

Lieutenant Sean Zrate SPR25/2129 Page 3 July 29, 2025 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). Sincerely, Manza Arthur Supervisor of Records cc: George and Jen Burden