Altin Berxhiku v. Billerica, Town of - Town Clerk (SPR 20240534)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 4, 2024 SPR24/0534 John Curran Town Clerk Town of Billerica 365 Boston Road, Office #101 Billerica, MA 01821 Dear Mr. Curran: I have received the petition of Atlin 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 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 Appeals This request was the subject of a prior appeals. See SPR24/0204 Determination of the Supervisor of Records (February 6, 2024) and SPR24/0359 Determination of the Supervisor of Records (February 15, 2024). In my February 15th determination, I found that it was unclear if the Town possesses additional records responsive to the request. The Town responded on February 16, 2024. Unsatisfied with the response, Mr. Berxhiku further petitioned this office and this appeal, SPR24/0534, 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 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

John Curran SPR24/0534 Page 2 March 4, 2024 any records, categories of records or portions of records that the agency or municipality intends 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 16th Response In its February 16, 2024 response, the Town stated, “I provided the legal counsel bill... I also answered [Mr. Berxhiku’s] question as to what was the legal authority with which public funds could be expended to represent the Building Commissioner. I provided that as well… [Mr. Berxhiku’s] second appeal… is not an accurate representation of [his] original request. [Mr. Berxhiku] never asked for information about the form of communication [he] asked for the invoices and under what authority they were paid. I have provided that information.” Current appeal In his appeal, Mr. Berxhiku stated, “it is very clear from the [the Town’s response], that these records exist and the town is in possession of these records…” No Duty to Create Records Please be advised, under the Public Records Law the Town is not required to create a record in response to the request. See G. L. c. 66, § 6A(d). 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). Additionally, please note that under the Public Records Law, a public employee is not required to answer questions, do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Conclusion Where the Town does not possess any additional records responsive to the January 6th request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Berxhiku is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b). If Mr. Berxhiku wishes to submit an additional public records request to the Town containing the language concerning the form of communication, and is unsatisfied with the response, he may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1).

John Curran SPR24/0534 Page 3 March 4, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Atlin Berxhiku