Altin Berxhiku v. Billerica, Town of - Town Clerk (SPR 20240357)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 15, 2024 SPR24/0357 Donna McCoy Town Clerk Town of Billerica 365 Boston Road Billerica, MA 01821 Dear Ms. McCoy: 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 December 6, 2023, Mr. Berxhiku stated: [I] would like to know if any taxpayers [sic] money will be (mis)used by the town council to fulfill my request for records . . . . Should you intend to (mis) use any tax payers [sic] money, to comply with the. . . request, [I] respectfully ask pursuant to public records laws (See G.L. c.66, §10A), and as a Billerica tax payer, to let me know[.] Prior Appeal This request was the subject of a prior appeal. See SPR23/3081 Determination of the Supervisor of Records (January 8, 2024). In my January 8th determination, I found that it was unclear whether the Town had provided a response. The Town responded on January 30 and January 31, 2024. Unsatisfied with the responses, Mr. Berxhiku petitioned this office and this appeal, SPR24/0357, 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). 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

Donna McCoy SPR24/0357 Page 2 Fabruary 15, 2024 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); -se-e -al-so- -D-is-t.- A-t-to-rn-e-y- f-or- t-he- -N-or-f-ol-k- D-i-st-. v-.- F-la-tl-e-y, 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. The Town’s Responses In its January 30, 2024 response, the Town stated, “[a]t this time there are no records to produce an answer to [Mr. Berxhiku’s] question.” After clarification from Mr. Berxhiku, the Town sent an additional response on January 31, 2024 and stated, “[i]n regards to [Mr. Berxhiku’s] original public records request the answer is Yes.” Current Appeal In his appeal petition, Mr. Berxhiku states, “[The Town] is acknowledging that indeed a meeting took place, but [the Town] didn't provide the minutes of that meeting, what was discussed in that meeting, and who made the decision to approve the use of taxpayer money for this expenditure…” No Duty to Answer Questions, Conduct Research Mr. Berxhiku is advised that 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, 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). Where Mr. Berxhiku submitted to the Town a question regarding another records request, I find the Town has no duty under the Public Records Law to answer such questions. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Berxhiku wishes to submit a request for public records to the Town for the records referred to in his appeal, and is unsatisfied with the response, he may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1).

Donna McCoy SPR24/0357 Page 3 Fabruary 15, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku