George and Jen Burden v. Lunenburg, Town of - Police Department (SPR 20252411)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 26, 2025 SPR25/2411 Acting Lieutenant Sean Zrate Lunenburg Police Department 655 Massachusetts Avenue Lunenburg, MA 01462 Dear Lieutenant Zrate: I have received the petition of George and Jennifer 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 30, 2025, Mr. and Ms. Burden requested, “any and all records that list or reference [two identified individuals] as being placed on a ‘danger list’ or marked as ‘red flagged’ by the Department or any affiliated agency. This includes internal communications, memos, reports, dispatch notes, or any documentation used to support or justify such a design.” The Department responded on July 30, 2025. Unsatisfied with the response, Mr. and Ms. Burden petitioned this office and this appeal, SPR25/2411, 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 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

Acting Lieutenant Sean Zrate SPR25/2411 Page 2 August 26, 2025 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 30th Response On July 30, 2025, the Department stated, “[p]lease be advised that this department has already provided you with a response for this request.” Current Appeal In their August 15, 2025 appeal to this office, Mr. and Ms. Burden objected to the Department’s response. In an August 20, 2025 email communication from the Department to this office, the Department confirmed that it “do[es] not have a ‘danger’ or a ‘red flag’ list.” 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 stated it does not have responsive records 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 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 Jennifer Burden