Altin Berxhiku v. Billerica, Town of - Town Clerk (SPR 20240900)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 8, 2024 SPR24/0900 Donna McCoy Town Clerk 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 19, 2024, Mr. Berxhiku requested: [o]n this email dated, 04/15/2021, you shared some concerns with the then [C]hief of [P]olice ... As part of my public record request, [I] am asking you to share any responses (emails) from ... 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, ... 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 ... in regards to this matter… Previous Appeal The requested records were the subject of a previous appeal. See SPR24/0715 Determination of the Supervisor of Records (March 22, 2024). In my March 22nd determination, I ordered the Town to clarify if any additional records exist. The Town provided a response on March 25, 2024. Unsatisfied with the Town’s response, Mr. Berxhiku petitioned this office and this appeal, SPR24/0900, 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 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 SPR24/0900 Page 2 April 8, 2024 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. 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 25th response, the Town stated, “[t]he Town has produced all records within [its] possession regarding your public records request.” Current Appeal In his appeal, Mr. Berxhiku noted that an email he had been provided stated that [an identified individual] had contacted the building department, and stated, “The Town is in possession of these records [I] had requested on March 16, 2024 (see attached email). As you can see…the chief of police is admitting that he contacted the building department, [an identified individual] is the head of that department.” No Duty to Create Records 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). In a conversation between a Public Records Division staff attorney and the Town, the Town confirmed that it does not have any additional records responsive to Mr. Berxhiku’s request. Conclusion Accordingly, where the Town has confirmed that it does not possess any additional records, and has no duty to create records in response to a request, I will now consider this

Donna McCoy SPR24/0900 Page 3 April 8, 2024 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) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku