Altin Berxhiku v. Billerica, Town of - Town Clerk (SPR 20240810)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 29, 2024 SPR24/0810 Donna McCoy Town Clerk Chief Records Access Officer Town of Billerica 365 Boston Road, Office #101 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 15, 2024, Mr. Berkhiku requested: [1.] Can you share the meeting notes (minutes) where it was decided to hire this outside law firm to oppose my request for public records? [2.] …the meeting notes between the town council and [an identified individual], as he indicated on his response I had emailed you 1/31/2024. The Town responded on March 11, 2024. Unsatisfied with the response, Mr. Berxhiku petitioned this office and this appeal, SPR24/0810, was opened as a result. Previous Appeal The requested records were the subject of a previous appeal. See SPR 24/0660 Determination of the Supervisor of Records (March 14, 2024). In my March 14, 2024 determination, I learned that the Town had provided a response dated 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 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 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 SPR24/0810 Page 2 March 29, 2024 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. See 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 In its March 11, 2024 response, the Town stated, “[t]he Town Clerk’s office does not have any records that Mr. Berxhiku is requesting...” Current appeal In his appeal, Mr. Berxhiku asserts: The town is in possession of this [sic] records. Please see attached response from one of the selectman from the town of Billerica . . . that these records do exist. The chief of police indicated that he’ll discuss this matter with the town council (see attached letter from chief of police). I am asking for the minutes of the meeting that took place between the town council and the chief of police to discuss this matter. No Duty to Create Records Under the Public Records Law, the Town is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Accordingly, where the Town has confirmed that it does not possess requested records and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Mr. Berxhiku is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10(A)(c).

Donna McCoy SPR24/0810 Page 3 March 29, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku