George and Jen Burden v. Peace Officer Standards and Training Commission (SPR 20253214)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 13, 2025 SPR25/3214 Evert Fowle, Esq. Counsel Peace Officer Standards & Training Commission 84 State Street Boston, MA 02109 Dear Attorney Fowle: I have received the petition of George Burden appealing the response of the Peace Officer Standards & Training Commission (Commission) 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. Burden requested “any and all records that list or reference [two named individuals] as being placed on a ‘danger list’ or marked as ‘red flagged’ by the Lunenburg Police Department or any affiliated agency. This includes internal communications, memos, reports, dispatch notes, or any documentation used to support or justify such a designation.” The Department responded on August 13, 2025, providing a fee estimate. Subsequently, on August 14, 2025, Mr. Burden modified his request as follows: [1.] Documents that POST has received directly from the Lunenburg Police Department regarding [the two named individuals], which we have not previously received or been copied on. [2.] Documents that POST has sent to the Lunenburg Police Department regarding either of us, where we were not included as recipients. More specifically, we are seeking any documentation created or exchanged by POST that references the “red flag” or “danger list” designation associated with [one named individual]. Our goal is to identify communications or records between POST and the Lunenburg Police that we would not have had access to, in order to better understand the basis and context of this designation. If it helps your search parameters, we believe this could include any documents referencing our names, address, or email addresses that also contain terms such as “red flag” or “danger list,” and where we were not included in the distribution. 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

Evert Fowle, Esq. SPR25/3214 Page 2 November 13, 2025 The Commission responded to the modified request on August 21, 2025. Unsatisfied with the Commission’s response, Mr. Burden petitioned this office, and this appeal, SPR25/3214, 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. 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. Fee Estimates - Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4).

Evert Fowle, Esq. SPR25/3214 Page 3 November 13, 2025 Current Appeal In his appeal petition, Mr. Burden states that “the three most recent emails we received from . . . all with basically the same comment - we will review and get back to you. No one from POST has gotten back to us.” He further contends that “the basis of the request for the appeal is non response.” The Commission’s August 13th and August 21st Response In its August 13, 2025 response, the Commission indicates that it has “178 documents stemming from 14 public complaints” that are responsive to the original request, and provides a total fee estimate of $650.00. In its August 21, 2025 response, following Mr. Burden’s modification of the request, an attorney for the Commission states the following: Thank you for the proposed modification. . . . I am currently reviewing if it would cause a change to our fee estimate and if not, some proposed alternatives. I hope to reach out to you next week with further information. Timeliness for Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of a request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records . . . and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Mr. Burden modified the scope of his request on August 14, 2025, and the Commission has not provided responsive records, nor cited an exemption for withholding records, I find the Commission has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b). Consequently, the Commission must provide an estimated date as to when it intends to complete the search and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Commission must provide responsive records on a rolling basis.

Evert Fowle, Esq. SPR25/3214 Page 4 November 13, 2025 Conclusion Accordingly, the Commission is ordered to provide Mr. Burden with a response to the 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. Mr. Burden may further appeal the substantive nature of the Commission’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: George Burden