George and Jen Burden v. Lunenburg, Town of - Police Department (SPR 20252291)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 15, 2025 SPR25/2291 Lieutenant Sean Zrate Records Access Officer Lunenburg Police Department 655 Massachusetts Avenue Lunenburg, MA 01462 Dear Lieutenant Zrate: I have received the petition of Jen and 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 July 31, 2025, Mr. and Mrs. Burden requested, “any and all records of any Lunenburg Resident who has had their LTC Revoked for any reason at any time in last 10 years.” The Department responded on August 5, 2025. Unsatisfied with the Department’s response, Mr. and Mrs. Burden petitioned this office, and this appeal, SPR25/2291, 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. Att’y 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

Lieutenant Sean Zrate SPR25/2291 Page 2 August 15, 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 August 5th Response In its August 5, 2025 response, the Department denied the request, and claimed that the responsive records are exempt from disclosure under G. L. c. 66, § 10B, as it operates through 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, 54 (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. G. L. c. 66, § 10B provides in relevant part: The commissioner of the department of criminal justice information services, the department of criminal justice information services and its agents, servants, and attorneys including the keeper of the records of the firearms records bureau of said department, or any licensing authority, as defined in section 121 of chapter 140, shall not disclose any records divulging or tending to divulge the names and addresses of persons who own or possess firearms, rifles, shotguns, machine guns and ammunition therefor, as defined in said section 121 of said chapter 140, and

Lieutenant Sean Zrate SPR25/2291 Page 3 August 15, 2025 names and addresses of persons licensed to carry or possess the same to any person, firm, corporation, entity or agency except criminal justice agencies as defined in section 167 of chapter 6 and except to the extent such information relates solely to the person making the request and is necessary to the official interests of the entity making the request. G. L. c. 66, § 10B. Under the statute cited above, the Department states, “records divulging names, home or email addresses and phone numbers; persons who own, possess or have license to carry firearms; government personnel: G. L. c. 66, § 10B. [sic] shall not be made public.” Current Appeal In their petition to this office, Mr. and Mrs. Burden assert, “[w]hile G.L. c. 66, § 10B restricts disclosure of names and addresses of individuals licensed to carry firearms, it does not categorically prohibit disclosure of all records related to LTC revocations or danger/red flag lists.” They further “request that [this] office . . . [d]etermine whether the cited exemptions were properly applied.” Duty to Segregate; Identify the Records Although portions of the responsive records may fall under Exemption (a) and G. L. c. 66, § 10B, based on the Department’s response, it is unclear how the records may be withheld in their entirety. Specifically, the Department must explain whether it is able to redact the names and addresses of individuals so that segregable portions of the records can be provided. See G. L. c. 66, § 10(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Additionally, it is unclear from the Department’s response which specific records the Department intends to withhold. The Department must identify the records, categories of records, or portions of records it intends to withhold under Exemption (a) and G. L. c. 66, § 10B. 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 these matters. Conclusion Accordingly, the Department is ordered to provide Mr. and Mrs. Burden with a response to their 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.

Lieutenant Sean Zrate SPR25/2291 Page 4 August 15, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Jen and George Burden