Altin Berxhiku v. Billerica, Town of - Police Department (SPR 20241131)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 30, 2024 SPR24/1131 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 April 14, 2024, Mr. Berxhiku requested: [1.] Why were there at least 3 police officers at my house for this false report, that was proved to be untrue? [2.] Are there any specific instructions, applicable to [I] and my family alone, that are given to municipal Billerica police officers? [3.] Keeping in mind that this false police report, is endorsed by [an identified individual] of the Middlesex DA office, what is his involvement in this illegal practice? [4.] Were there any specific instructions given to these police officers to shoot me and take me out, if [I] was on the scene? [5.] What would justify the presence of three officers, to show up [by] my house? [6.] Why were they acting on a false tip, initiated by a laborer, who has a long grudge against my family? [7.] What is the involvement of the [former deputy chief of police] in all of this…Are there any specific instructions by the former deputy chief against myself or my family? 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

Sergeant Andrew Devito SPR24/1131 Page 2 April 30, 2024 The Department responded on April 16, 2024. Unsatisfied with the response, Mr. Berxhiku petitioned this office and this appeal, SPR24/1131, 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). 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 appeal, Mr. Berxhiku stated, “[a]s [I] stated in my request, the CAD entry filed by the police department on 7/24/24, it specifically says that per deputy orders, 2 police officers should respond to these kind of calls. On the same CAD entry, you can easily see that there were three police officers that responded to this call.” The Department’s April 16th Response In its April 16, 2024 response, the Department stated, “[a]s an initial matter, after diligent search of Police Department records, there are no records responsive…” In an email dated April 17, 2024, the Department stated, “[t]he Department’s duty to respond to records requests extends only to records that are in existence and in its custody, and the Police Department is under no obligation to create records in response to the request. Furthermore, the Police Department is not required to answer questions in response to a public records request.” No Duty to Answer Questions 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

Sergeant Andrew Devito SPR24/1131 Page 3 April 30, 2024 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 Mr. Berxhiku submitted to the Department a list of questions, I find the Department has no duty under the Public Records Law to answer such questions. Conclusion Accordingly, 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). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku