Altin Berxhiku v. Billerica, Town of - Police Department (SPR 20241815)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 5, 2024 SPR24/1815 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. Previous Appeal This request was the subject of a previous appeal. See SPR24/1568 Determination of the 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 SPR24/1815 Page 2 July 5, 2024 Supervisor of Records (June 7, 2024). In my June 7th determination, I ordered the Department to either revise its fee estimate for Parts 2, 3, 5, and 9 of the request, or to provide further explanation of how the fees are consistent with the Public Records Law. Subsequently, the Department responded on June 21, 2024. Objecting to the fees, Mr. Berxhiku again petitioned this office, and this appeal, SPR24/1815, 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. 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

Sergeant Andrew J. Devito SPR24/1815 Page 3 July 5, 2024 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 June 21st Response In its previous May 22, 2024 fee estimate, the Department provided a total fee estimate of $225. The Department indicated that it would require a total of 11 hours of work, would not charge for the first two hours, and that it would charge a rate of $25 per hour, which is less than the hourly rate of the lowest paid employee with the necessary skills to perform the required tasks. In its June 21, 2024 response, the Department provides the following information concerning the tasks involved, and the amounts of time allocated to each task: Response 2 The Police Department anticipates it has responsive payroll records. These records are created from an electronic time management system and then placed into Munis, which is a second electronic database that tracks payroll. Following that process, our payroll clerk then makes out master paper sheets that include personal time off, sick time, vacation time, training reassignment, and other sub- categories that are factored into the payroll. In order to search each of these databases, in addition to the paper records, the record keeper will be required to sort through many different documents for over 100 employees, segregate records related to [the named individual], and differentiate PTO from other categories of work assignments. Estimate of time to search for and locate records: 2- hours/$25.00 by Police Department Records Access Officer. Response 3 The Police Department anticipates it has the recording requested. As the search of this material will require the Records Officer to carefully review all of the 20+ separate cameras, some of which include audio capture, during the time in question to insure no confidential or privileged conversations are captured, we estimate of time to search for and locate records: 4- hours/$25.00 by Police Department Records Access Officer. Response 5 The Police Department anticipates it has responsive payroll records. These records are created from an electronic time management system and then placed into Munis, which is a second electronic database that tracks payroll. Following that process, our payroll clerk then makes out master paper sheets that include personal time off, sick time, vacation time, training reassignment, and other sub- categories that are factored into the payroll. In order to search each of these databases, in addition to the paper records, the record keeper will be required to sort through many different documents for over 100 employees, segregate records related to the [two named individuals], and differentiate PTO from other categories of work assignments. Estimate of time to search for and locate records:

Sergeant Andrew J. Devito SPR24/1815 Page 4 July 5, 2024 3- hours/$25.00 by Police Department Records Access Officer. Response 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. This is the estimated time required to locate and listen to the call to insure no privileged information and/or information that is statutorily restricted from disclosure is contained in the audio file as this particular call was made into an active Public Safety E-911 Emergency Center that has live CJIS data being discussed in a secure environment. In light of the information provided in the Department’s June 21st response, and in conjunction with the Department’s previous response, I find the Department has met its burden to explain how it has provided a reasonable fee estimate for the production of records responsive to this request. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). Conclusion As set forth above, I find the Department has met its burden in responding to Mr. Berxhiku’s request at this time. Any revision to the request would result in the requirement to issue a revised fee estimate. Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku