Altin Berxhiku v. Billerica, Town of - Police Department (SPR 20241884)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 15, 2024 SPR24/1884 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 June 2, 2024, Mr. Berxhiku requested “the contents of [specified] conversations.” Previous appeal This request was the subject of a previous appeal. See SPR24/1819 Determination of the Supervisor of Records (June 28, 2024). In my June 28th determination, I ordered the Department to provide a response to Mr. Berxhiku. The Department provided a response on July 1, 2024. Unsatisfied with the Department’s response, Mr. Berxhiku petitioned this office and this appeal, SPR24/1884, was opened as a result. Status of Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Berxhiku’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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 SPR24/1884 Page 2 July 15, 2024 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. Att’y 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. The Department’s July 1st response In its July 1, 2024 response the Department asserted: …[A]fter diligent search of the … Department records, there are no records responsive to… this request. There was one document located as it relates to a conversation/meeting between [two identified individuals] that occurred on April 19, 2021. This document is in regards to a citizen complaint that [an identified individual] filed against [an identified officer] from an incident on April 10, 2021….[F]urther at the end of [the identified individual’s] meeting with [the identified officer] he withdrew the complaint against the officer. I have attached this letter to the Department response. Current Appeal In his appeal, Mr. Berxhiku stated: According to the email I had submitted, as part of my records appeal, [an identified officer] had 2 conversations with [an identified individual]…. I am merely, asking for the contents of those conversations that clearly took place, between [these individuals]…. Based upon a telephone conversation between a staff attorney of the Public Records Division and a representative of the Department, the Department confirmed that all responsive records have been provided.

Sergeant Andrew J. Devito SPR24/1884 Page 3 July 15, 2024 No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 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 at the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion Accordingly, where the Department has confirmed that it provided all responsive documents for this request and that it does not possesses any additional records responsive to Mr. Berxhiku’s request, I will now consider this administrative appeal closed. If Mr. Berxhiku is unsatisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku