Altin Berxhiku v. Billerica, Town of - Police Department (SPR 20241024)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 18, 2024 SPR24/1024 Andrew J. Devito Police Sergeant Records and Scheduling Billerica Police Department 6 Good Street Billerica, MA 01821 Dear Sergeant Devito: 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, “…the personnel files of [nine identified police officers].” Previous Appeals The requested records were the subject of previous appeals. 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), SPR24/0137 Determination of the Supervisor of Records (January 30, 2024), and SPR24/0657 Determination of the Supervisor of Records (March 15, 2024). In my March 15th determination, I ordered the Department to identify what records were withheld pursuant to Exemption (c) and clarify how responsive records were subject to a pending administrative appeal. The Department provided a response on April 3, 2024. Unsatisfied with the response, Mr. Berxhiku petitioned this office and this appeal, SPR24/1024, 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 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

Andrew J. Devito SPR24/1024 Page 2 April 18, 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. Current Appeal In his current appeal, Mr. Berxhiku stated, “I am appealing this latest response… [the custodian] just reiterated what they have said in the past, ignoring your determination to provide me with an answer.” Mr. Berxhiku also stated, “[t]his is no longer a pending matter. The hearing has been had [sic] on 01/16/2024.” The Department’s April 2nd Response On April 2, 2024, the Department withheld the records in their entirety, and cited Exemption (c) of the Public Records Law and stated that the requested records are the subject of dispute in an administrative hearing. Status of Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Berxhiku’s status as a party named in the hearing will play no role in a determination as to whether the record should be disclosed or redacted under the Public Records Law. 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 Supervisor:

Andrew J. Devito SPR24/1024 Page 3 April 18, 2024 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In its response, the Department stated: As previously stated, the Department withheld responsive records related to this request…as the “records in question are the subjects of disputes in active litigation, administrative hearings or mediation.” Specifically, the records you requested also relate to a Department of Children and Families (“DCF”) matter under review. In particular, as you know, the exact same records requested in this public records request were requested via subpoena served on the Department in the case of Department of Children and Families v. Altin and Alda Berxhiku, DCF Fair Hearing Unit, Docket 2023-1477. Therefore, until evidence is produced demonstrating that this matter is closed, the Department maintains that the requested records are, under 950 CMR 32.08(2)(b)(1). Based on the information provided by Mr. Berxhihu, it is unclear if the administrative hearing is still pending. The Department must clarify this matter. 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.

Andrew J. Devito SPR24/1024 Page 4 April 18, 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). Examples of the types of personal information which the privacy portion of this exemption is designed to protect include: marital status, legitimacy of children, identify of fathers of children, medical condition, welfare payments, alcohol consumption, family fights, and reputation. See Boston Globe Media Partners, LLC v. Dep’t of Pub. Health, 482 Mass. 427, 443 n. 17 (2019). 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. In citing Exemption (c) to withhold the records, the Department stated: … the requested records, unsurprisingly, as they constitute over 200 years of combined personnel records, are replete with Personal Identifying Information, such as social security numbers, home addresses, and names of family members, of not only the officers, but also third parties. The records also contain innumerable references to scheduling, assignments, internal personnel systems, and the like, which are unquestionably exempt as essential to protects “the government’s ability to function effectively as an employer.” Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792, 799, 802 (2000). Moreover, the public’s interest in these subjects is minimal. With respect to disciplinary history that the Supervisor states is relevant to the public’s “recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner,” SPR24/0657, at 3, the Department maintains that several of the officers whose files were requested have no disciplinary history at all. Several other officers have only minimal disciplinary history and such history is temporally remote, such as to have little bearing on whether those officers are carrying out their duties properly. Finally, although the Supervisor did not address this assertion, the Department continues to maintain that disclosure is not appropriate in light of pending litigation concerning the scope of the statutory amendment to Exemption (c) as part of police reform legislation…

Andrew J. Devito SPR24/1024 Page 5 April 18, 2024 Although the Department states that “[t]he records also contain innumerable references to scheduling, assignments, internal personnel systems, and the like. . .” it remains unclear what specific types of records the Department possesses, nor how these records constitute one of the core categories of personnel information that are useful in making employment decisions regarding an employee. 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). See SPR24/0657. Further, with the exception of social security numbers which may be redacted, it is unclear how the records, in their entirety, constitute intimate details of a highly personal nature. It is unclear how work schedules and assignments are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also uncertain why such records would have little bearing on whether officers are carrying out their duties properly. Additionally, based on the Department’s response it is unclear how the Department can withhold the records in their entirety pursuant to Exemption (c). The Department must explain whether segregable portions of the requested records can be provided. See G. L. c. 66, § 10(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Consequently, I find the Department has not met its burden of specificity to withhold the records, in their entirety, under Exemption (c) of the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Mr. Berxhihu 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. Mr. Berxhihu may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku