Altin Berxhiku v. Billerica, Town of - Town Clerk (SPR 20240897)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 8, 2024 SPR24/0897 Donna McCoy Town Clerk Town of Billerica 365 Boston Road, Room #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 March 15, 2024, Mr. Berxhiku stated: Having read the petition I fail to see its relevance to my zoning complaint of an illegal business… [1.] How does this petition remotely factor in on whether the business being conducted is legal or illegal? [2.] What does the petition have anything to do with the legality of the activities on my zoning complaint? [3.] What Town rule or bylaw was your decision based on? The Town responded on March 25, 2024. Unsatisfied with the response, Mr. Berxhiku petitioned this office and this appeal, SPR24/0897, 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

Donna McCoy SPR24/0897 Page 2 April 8, 2024 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 25th Response In its March 25, 2024 response, the Town stated, “[t]he Town has produced all records within ou[r] possession regarding your public records request.” Current appeal In his appeal, Mr. Berxhiku stated, “[c]ustodians of records 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)…He didn’t assist the requestor (me), to obtain the desired information. The town failed to disclose the rule or bylaw their decision based on.” No Duty to Answer Questions, Conduct Research Mr. Berxhiku is advised that 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). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Where the Town has stated that it has provided Mr. Berxhiku with responsive records and has no duty under the Public Records Law to answer such questions, I find that the Town has met its burden regarding this records request. Conclusion Accordingly, I will now consider this administrative appeal closed.

Donna McCoy SPR24/0897 Page 3 April 8, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku