Altin Berxhiku v. Billerica, Town of - Town Clerk (SPR 20240104)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 26, 2024 SPR24/0104 John C. Curran Town Clerk Town of Billerica 365 Boston Road, Office #101 Billerica, MA 01821 Dear Mr. Curran: I have received the petition of Altin Berxhiku appealing the response of the Town of Billerica (Town) 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 stated, “I am in receipt of a motion to vacate my request for personnel files, filed by KP Law PC on behalf of the Billerica Police … I would like to know what was the bill (dollar amount) that KP Law charged the Town of Billerica for these services.” The Town responded on January 4, 2024. Unsatisfied with the Town’s response, Mr. Berxhiku petitioned this office and this appeal, SPR24/0104, 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. See 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

SPR24/0104 John C. Curran Page 2 January 26, 2024 The Town’s January 4th Response In its January 4, 2024 response, the Town stated “[t]hese records do not exist as we have not been billed yet since you just made the request.” Based on the Town’s response, it is unclear if the Town possesses any records responsive to the request at this time. 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). However, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the Town must clarify whether records exist. Conclusion Accordingly, the Town is ordered to provide Mr. Berxhiku with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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. Berxhiku may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku