Altin Berxhiku v. Billerica, Town of (SPR 20240715)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 22, 2024 SPR24/0715 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 February 19, 2024, Mr. Berxhiku stated: [o]n this email dated, 04/15/2021, you shared some concerns with the then [C]hief of [P]olice Daniel Rosa. As part of my public record request, [I] am asking you to share any responses (emails) from Daniel Rosa regarding this matter. If you spoke on the phone, [I] am asking that you share the contents of those phone conversation. You also mentioned that you brought up these concerns with the then [D]eputy [C]hief [P]olice, Roy Frost. I am asking as part of the same public record request, that you share the contents of those conversations, as well as any email responses from Roy Frost, in regards to this matter… On March 1, 2024, the Town stated, “I am responding to acknowledge your public records request. I am currently working on retrieving the information you requested and expect to have this task completed sometime next week. I will forward all available records to you via email.” After not receiving any records, on March 1, 2024, Mr. Berxhiku petitioned this office and this appeal, SPR24/0715, was opened. While this appeal was pending, the Town provided a supplemental response on March 11, 2024. 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 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 SPR24/0715 Page 2 March 22, 2024 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(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. 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 March 11th Response On March 11, 2024, the Town provided Mr. Berxhiku with emails responsive to his request, and stated, “Altin … [t]here are no records of any conversations.” In a March 11, 2024 email to this office, Mr. Berxhiku provided this office with emails between Mr. LaLumiere and Daniel Rosa, Former Police Chief on April 15, 2021 at 6:10 PM, and April 16, 2021 at 12:30 PM. In his March 11th email, Mr. Berxhiku asserts: I am appealing the response . . . by the [T]own. The [T]own is claiming that there are no records of any conversations between Mark La[L]umiere, former [C]hief of [P]olice Daniel Rosa and current [C]hief of [P]olice Roy Frost. I believe the opposite is true, that there are records and the [T]own is withholding these records in violation of the [P]ublic [R]ecord[s] [Law]. On this email dated, 04/15/2021 (see attached), Mark La[L]umiere shared some concerns with the then [C]hief of [P]olice Daniel Rosa. As part of my public record request, [I] am asking that they share any responses (emails) from Daniel Rosa regarding this matter. If they spoke on the phone, [I] am asking that they share the contents of those phone conversation. Mark La[L]umiere has asked Daniel Rosa for guidance, what was the response/guidance that Daniel Rosa offered to Mark La[L]umiere? They also mentioned, on this email, that they brought up these concerns with the then [D]eputy [C]hief of [P]olice, Roy Frost. Mark La[L]umiere is admitting, on this email, that he had a conversation about this on 04/15/2021. I am asking as part of the same public record request, that they share the contents of those conversations, as well as any email responses from Roy Frost, in regards to this matter. It is very clear by this email written by Mark La[L]umiere that these records exist.

Donna McCoy SPR24/0715 Page 3 March 22, 2024 Additional Records Based on Mr. Berxhiku’s appeal, in conjunction with the Town’s response, it is unclear if the Town possesses additional records responsive to his 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). 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 additional 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 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