Altin Berxhiku v. Billerica, Town of - Police Department (SPR 20240088)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 23, 2024 SPR24/0088 Sergeant Andrew J. Devito Records & Scheduling Billerica Police Department 6 Good Street Billerica, MA 01821 Dear Sergeant Devito: I have received the petition of Altin Berxhiku appealing the response of Billerica 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 January 3, 2024, Mr. Berxhiku sent the following to the Department: “[i]t has come to my attention that [D]eputy [C]hief of [P]olice, . . . uses public funds for his daily commute from New Hampshire … I am asking for . . . itemized expense report disbursements for fiscal year ending 12/31/2023.” On January 9, 2024, the Department responded, stating, “[a]ttached is the report requested.” As a result of receiving the Department’s January 9th response, on January 10, 2024, Mr. Berxhiku petitioned the Supervisor of Records, and this appeal was opened. While this appeal was pending, the Department provided a supplemental response on January 11, 2024. 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 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

Sergeant Andrew J. Devito SPR24/0088 Page 2 January 23, 2024 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. Current Appeal In his January 10th petition, Mr. Berxhiku acknowledges that he received expense report disbursements; however, Mr. Berxhiku asserts: …they fail to acknowledge that this is everything for FY2023? It appears that there [are] no expense reports for the first 6 months (January-June) attributed to [the Deputy Chief]. More specifically [I] had asked for his expense reports as they relate to his daily commute to and from New Hampshi[r]e. It is unclear from [Sergeant] Devito’s response, if [Deputy Chief], pays out of his own pocket for his daily commuting expenses ([g]asoline, mileage etc….?). If he gets reimbursed for his daily commuting expenses, is that something afforded to him and him alone, or is that common practice for the [Department]. [Sergeant] Devito has failed to provide an adequate, satisfying answer to these questions… The Department’s January 11th Supplemental Response In a January 11, 2024 response to this office and Mr. Berxhiku regarding the request and current appeal, Sergeant Devito states: [o]n January 9, 2024, in compliance with the Public Records Law, the [Department] provided Mr. Berxhiku at no charge with all available documents in its possession related to itemized expense report disbursements for fiscal year ending 13/31/2023: related to former (now retired) Deputy Chief . . . As you are aware, Fiscal Year 2024 began on July 1, 2023. As stated above, and after further review of its records in good faith, the [Department] does not have any additional documents that are responsive to this request. Mr. Berxhiku is advised, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 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 Accordingly, where the Department provided responses on January 9, 2024 and January 11, 2024, including records responsive to the request, I will consider this administrative

Sergeant Andrew J. Devito SPR24/0088 Page 3 January 23, 2024 appeal closed. If Mr. Berxhiku seeks additional records, he may submit a new request to the Department’s Records Access officer. Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku