Altin Berxhiku v. Billerica, Town of - Police Department (SPR 20241378)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 20, 2024 SPR24/1378 Sergeant Andrew 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 29, 2024, Mr. Berxhiku requested, “…copies of all paid overtime detail work, allegedly performed by Billerica police officers on the Middlesex Turnpike project, by name and date.” The Department responded on May 6, 2024. Unsatisfied with the response, Mr. Berxhiku petitioned this office and this appeal, SPR24/1378, 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. 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 SPR24/1378 Page 2 May 20, 2024 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 Department’s May 6th Response In its May 6th response, the Department provided a series of records and stated, “[r]ecords provided 9/27/2017 to present from Middlesex Turnpike Project-Barletta Heavy Division, Inc.” Current appeal In his appeal, Mr. Berxhiku stated, “I had asked for all paid overtime detail work performed by the department on the Middlesex Turnpike project. These appear to be regular 8 hour shifts, it’s unclear if any of these are for overtime detail work.” In an email dated May 7, 2024, the Department further explained, “[a] police detail is extra work for the officer. These details are paid for by the vendor who contracts the officer for the job.” In an email dated May 8, 2024, the Department further clarified, “[Mr. Berxhiku] does not or did not understand that police detail work is extra for an officer. All documents that he requested were sent on his original request.” No Duty to Create Records Under the Public Records Law, the Department 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 of the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion Accordingly, where the Department has confirmed that it does not possess additional 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). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku