Altin Berxhiku v. Billerica, Town of - Town Clerk (SPR 20240359)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 15, 2024 SPR24/0359 Donna McCoy Town Clerk Town of Billerica 365 Boston Road, Office #101 Billerica, MA 01821 Dear Ms. McCoy: I have received the petition of Atlin Berxhiku appealing the nonresponse 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 6, 2024, Mr. Berxhiku requested “the invoice detailing the charges from KP Law to the town of Billerica for the conversation that took place between [an identified individual] and [an identified individual].” Prior Appeal This request was the subject of a prior appeal. See SPR24/0204 Determination of the Supervisor of Records (February 6, 2024). In my February 6th determination, it was my understanding that the Town provided a further response on February 1, 2024. Unsatisfied with the response, Mr. Berxhiku further petitioned this office and this appeal, SPR24/0359, 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends 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 SPR24/0359 Page 2 February 15, 2024 to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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. The Town’s February 1st Response In its February 1, 2024 response, the Town provided an invoice and stated, “[t]he Town does not get billed for services individually as [Mr. Berxhiku has] assumed. We pay a monthly retainer of $11,400 and they send us a breakdown of services provided[.] I have attached the portion of the bills that reflect the billing service period [Mr. Berxhiku] requested. However it does not itemize the cost precipitated by [Mr. Berxhiku’s] actions because we pay a retainer. It does make reference to services rendered.” Current appeal In his appeal, Mr. Berxhiku stated, “[w]hile [the Town] did provide an invoice that the town of Billerica had paid to KP Law firm for services provided by this law firm to research my emails for public records, this was unrelated to the specific charges I was asking him about… [The Town] did admit that [it] had approved [a named individual] to seek Town Counsel, apparently in accordance with the select Board Section 20. However, [the Town] failed to disclose if the conversation took place by email, mail or phone conversation. If it's by mail or email, the town manager should be copied on these emails to and from Town counsel. [The Town] didn't provide [these] emails, as part of my original request… Also, [the Town] failed to disclose the Invoice from KP Law firm to the Town of Billerica for these services… [The Town] failed to provide the records I had requested on my original request, that's why I am appealing [the Town’s] response…” In light of Mr. Berxhiku’s appeal, it is unclear if the Town possesses additional records that may be responsive to the request. 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). To the extent that responsive records exist, I find the Town must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). The Town must clarify this matter. 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

Donna McCoy SPR24/0359 Page 3 February 15, 2024 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. Sincerely, Manza Arthur Supervisor of Records cc: Atlin Berxhiku