Altin Berxhiku v. Billerica, Town of - Police Department (SPR 20241568)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 7, 2024 SPR24/1568 Sergeant Andrew J. Devito Records & 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, May 8, and May 9, 2024, Mr. Berxhiku requested the following: [1.] ... the 2023 tax returns (federal and state) of [a list of] public employees... [2.] ... a schedule of days worked, including PTO taken, of [a named individual], from 01/01/2024-05/08/2024... [3.] On 7/23/2023, sometime between 6pm-11pm, ... copies of audio/transcripts, conversations that took place between [Mr. Berxhiku] and [another individual] ... [4.] ... Did [named individuals] have a warrant to come inside [Mr. Berxhiku’s] house. [5.] ... a schedule of days worked, including PTO taken, of [two named individuals], from 07/23/23-05/09/2024. Also ... all of their expense reports for the same time period. [6.] ... a copy of the email from [an individual] to the POST commission. [7.] ... copies/transcripts of [specified] conversations, whether they took place by email, phone or in person. [8.] [A series of statements and questions regarding an incident] on or about April 10, 2021 ... [9.] On Sep 1-st 2023, between 5pm-7pm .. a transcript or audio file of [a specified] call. The Department responded on May 22, 2024, indicating it does not possess records responsive to Parts 1, 4, 6, 7, and 8, and providing a fee estimate for Parts 2, 3, 5, and 9. Objecting to the fees, Mr. Berxhiku appealed, and this case was opened as a result. 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 J. Devito SPR24/1568 Page 2 June 7, 2024 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. 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. Fee Estimates - Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first 2 (two) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Department’s May 22nd Fee Estimate In its May 22, 2024 fee estimate, the Department provides a total fee estimate of $225, and provides the following in support of its fee estimate:

Sergeant Andrew J. Devito SPR24/1568 Page 3 June 7, 2024 Request 2 The Police Department anticipates it has responsive payroll records. Estimate of time to search for and locate records: 2 hours/$25.00 by Police Department Records Access Officer. Request 3 The Police Department anticipates it has the recording requested. Estimate of time to search for and locate records: 4 hours/$25.00 by Police Department Records Access Officer. . . . Request 5 The Police Department anticipates it has responsive payroll records. Estimate of time to search for and locate records: 3 hours/$25.00 by Police Department Records Access Officer. . . . Request 9 The Police Department anticipates it has the recording requested. Estimate of time to search for and locate records: 2 hours/$25.00 by Police Department Records Access Officer. . . . As noted above with respect to several of [the] requests from May 8, 2024-May 9, 2024, the good faith estimate to search for, locate, compile, and make redactions required by law for the remaining materials identified above is 11 hours, which will be conducted by the Department’s Records Access Officer. The total estimate to search for and locate the voluminous records as detailed above is $275.00 ($25/hour/11# of hours.) . . . Total Estimate to Search for and Locate Records- Requests Dated May 8-9, 2024,- 11-/hours; Total: $275.00-- Minus Two Hours at $25/hour- $50.00 TOTAL ESTIMATE: $__225.00 Based on the Department’s response, it is unclear why it requires the amounts of time indicated above to search for and compile the records. The Department must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Department is ordered to provide Mr. Berxhiku with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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.

Sergeant Andrew J. Devito SPR24/1568 Page 4 June 7, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku