Altin Berxhiku v. Billerica, Town of - Police Department (SPR 20240657)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 15, 2024 SPR24/0657 John Zarro Police Sergeant Records & Scheduling Billerica Police Department 6 Good Street Billerica, MA 01821 Dear Sergeant Zarro: I have received the petition of Altin Berxhiku appealing the response of the 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 October 17, 2023, Mr. Berxhiku requested personnel files for nine identified police officers. Previous appeals and reconsideration This request was the subject of previous appeals and a subsequent reconsideration. See SPR23/2769 Determination of the Supervisor of Records (November 30, 2023); SPR23/2952 Determination of the Supervisor of Records (December 18, 2023); SPR23/3059 Determination of the Supervisor of Records (January 3, 2024); and SPR24/0137 Determinations of the Supervisor of Records (January 30, 2024 and February 15, 2024). In the February 15th determination, I found that the Department’s response did not contain the specificity required in a denial of access to public records. The Department responded on March 1, 2024. Unsatisfied with the response, Mr. Berxhiku petitioned this office and this appeal, SPR24/0657, 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

Sergeant John Zarro SPR24/0657 Page 2 March 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); 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. The Department’s March 1st response In its March 1, 2024 response, the Department cites Exemption (c) of the Public Records Law to withhold the responsive records. The Department also references an ongoing Department of Children and Families Fair Hearing Matter involving Mr. Berxhiku. Current appeal In his appeal, Mr. Berxhiku states, “this is no longer a pending matter… the Billerica police department has failed to demonstrate its claims that this falls under exemption C of the public records law.” Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis.

Sergeant John Zarro SPR24/0657 Page 3 March 15, 2024 This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. Under Exemption (c), the Department stated, “as your request seeks records contained in employees’ confidential personnel files, such information will be withheld pursuant to Exemption (c) of the Public Records Law.” The Department’s response did not did not contain the specificity required in a denial of access to public records. Based on the Department’s response, it is unclear how the withheld records constitute one of the core categories of personnel information that are useful in making employment decisions regarding an employee. Further, it is uncertain if the records contain intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the Department did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. As a result, I find that the Department did not meet its burden of specificity in withholding the records under Exemption (c) of the Public Records Law. In addition, it is unclear what type of records the Department possesses that are responsive to the request. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Also, please be advised, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Although the Department states that the requested records in its possession should be withheld, it is unclear what records responsive to Mr. Berxhiku’s request it is withholding. Therefore, the Department must identify the record(s) it has in its possession that it withheld under Exemption (c). Pending Administrative Proceeding 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the

Sergeant John Zarro SPR24/0657 Page 4 March 15, 2024 Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In its March 1, 2024 response, the Department states, “the records [Mr. Berxhiku] requested also relate to a Department of Children and Families (“DCF”) matter under review, and the Police Department has not confirmed, nor have you provided any documentation relative to this appeal confirming that the DCF matter has actually been resolved in the case of Department of Children and Families v. Altin and Alda Berxhiku, DCF Fair Hearing Unit, Docket 2023-1477.” Based on the Department’s response, and Mr. Berxhiku’s appeal, it is unclear how the responsive records are the subject of a pending administrative proceeding. The Department must clarify this. Conclusion Accordingly, the Department 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 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: Altin Berxhiku