Altin Berxhiku v. Billerica, Town of - Police Department (SPR 20241445)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 28, 2024 SPR24/1445 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 May 9, 2024, Mr. Berxhiku requested, “… the 2023 tax returns (federal and state) of the following public employees: [eight identified individuals].” The Department responded on May 13, 2024. Unsatisfied with the response, Mr. Berxhiku petitioned this office and this appeal, SPR24/1445, 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 SPR24/1445 Page 2 May 28, 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 13th Response In its May 13, 2024 response, the Department stated, “[p]lease be advised that the Police Department’s duty to respond to records requests extends only to records that are in existence and in its custody.… As an initial matter, these records belong solely to an individual and would not be housed at the Billerica Police Department.” Subsequently, the Department provided a response on May 22, 2024, and stated, “[t]he Police Department does not have any records responsive to this request.” Mr. Berxhiku responded on May 22, 2024, and stated, “I had asked the 2023 tax returns of certain officers, their response that these records don’t exist, it’s impossible, everyone in the US should file a tax return.” 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 records responsive to this request and has no duty to create such records, 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