Altin Berxhiku v. Billerica, Town of - Police Department (SPR 20241902)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 17, 2024 SPR24/1902 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 May 15, 2024, May 16, 2024, May 20, 2024, May 21, 2024, May 22, 2024, and May 23, 2024, Mr. Berxhiku requested: [Request 2] ... the 911 exchange between [identified individuals][;] [Request 5] ... all emails between [eight identified individuals] from 7/23/2023 through 5/16/2024[;] [Request 6] ... all emails, [an identified individual] sent out and received, between 7/23/2023-01/03/2024[;] [Request 7] ... all emails received and sent out by [ten identified individuals], between 7/23/23-5/16/2024[;] [Request 8] ... a copy of your court discovery documents...[;] … [Request 12] Can you share with me some of the outlandish claims that I made? [Request 13] Did you have a warrant to come inside my house? … all communications from the moment you left the … Billerica police station till the moment you unlawfully, unconstitutionally broke into my house. 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 SPR24/1902 Page 2 July 17, 2024 Previous appeal This request was the subject of a previous appeal. See SPR24/1636 Determination of the Supervisor of Records (June 13, 2024). In my June 13th determination, I learned that the Department intended to provide a further response. The Department responded on July 1, 2024, and provided a fee estimate. Unsatisfied with the Department’s response, Mr. Berxhiku petitioned this office and this appeal, SPR24/1902, 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. Fees - Municipalities 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. 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 (two) 2 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,

Sergeant Andrew Devito SPR24/1902 Page 3 July 17, 2024 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 how if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). The Department’s July 1st fee estimate In its July 1, 2024 fee estimate, the Department provides a total fee estimate of $5,650 and provides the following in support of its fee estimate: Request 2 [T]he estimated time required to locate and listen to the call and radio transmissions 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…: 2 hours / $25.00…. The Department estimates that the process of locating, reviewing and redacting the responsive call and radio transmissions will require 2 hours of employee time. However, it is not clear from the Department’s estimate how many hours are allocated to search, and how many hours are allocated for segregation and/or redaction of the records. As such, the Department must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Request 5 Request 5 has been grouped together with Requests 6 and 7 as nearly all documents requested in Request 5 would be captured by the documents responsive to Requests 6 and 7. The only documents … not captured by Requests 6 and 7 are [an identified officer’s] emails for the time period 1/4/2024 – 5/16/2024. However, as [this identified individual] retired effective January 4, 2024, no such emails exist…. Request 6 The request involves almost six months of email sent out and received by [an identified officer]. It is estimated that the total number of emails would be over three thousand (3,000). These emails would be printed, reviewed, and redacted if necessary to insure no privileged information and/or information that is statutorily restricted from disclosure is release. Estimate to search for and locate records: 22 hours / $25.00…. Although the Department estimates that the process of compiling, reviewing and preparing approximately 3,000 emails for production will take 22 hours of employee time, it is unclear how the Department requires this many hours to produce responsive records. It is not

Sergeant Andrew Devito SPR24/1902 Page 4 July 17, 2024 clear from the Department’s estimate how many hours are allocated to search, and how many hours are allocated for segregation and/or redaction of the records. The Department indicates that it intends to redact the responsive records. However, it is not clear if segregation and/or redaction of the records is required by law. Pursuant to the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). If the Department intends to make redactions required by law, it must state the applicable statutes, if any. Request 7 The request involves [10 police officers] over a nine-month period. In a search of one officer email for this time period it contains over one thousand nine hundred (1900) emails. Taking this number as the average and multiplying by nine the total number of emails to search, print, review, redact to insure no privilege information and/or information that is statutorily restricted from disclosure is contained potentially totals over seventeen thousand (17,000) emails to review [for nine of the ten officers]. In totaling the [10th officer’s] emails, they total over fifteen thousand (15,000) alone. The volume of this request would bring a final number over thirty thousand (30,000) emails to review. Estimate of time to search for and locate records: 200 hours/$25.00…. Although the Department estimates that the process of compiling, reviewing and preparing approximately 30,000 emails for production will take 200 hours of employee time, it is unclear how the Department requires this many hours to produce responsive records. It is not clear from the Department’s estimate how many hours are allocated to search, and how many hours are allocated for segregation and/or redaction, and printing of the records. It is not clear if segregation and/or redaction of the records is required by law. Pursuant to the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). If the Department intends to make redactions required by law, it must state the applicable statutes, if any. In addition, it is unclear the number of minutes that the Department must spend per page for the redactions. The Department must clarify these matters. Request 8 The … Department understands that this request seeks documents provided to the District Attorney’s office concerning [a specific case]. A diligent search will be conducted…. Once these records are located they will be reviewed and compared to those that were presented against the arrest of [an identified individual] and his subsequent court appearances…. Estimate of time to search for and locate records: 2 hours/ $25.00…. The Department estimates that it requires 2 hours “to search for and locate records[.]”

Sergeant Andrew Devito SPR24/1902 Page 5 July 17, 2024 However, it is not clear from the Department’s response, the tasks involved in the search for these records. The Department must provide additional details regarding the process to search for and produce responsive records. Request 12 and Request 13 Regarding the above requests, the Department states: … Because this request fails to reasonably describe the records requested, the… Department is unable to provide any documents in response to this request. In his appeal, regarding Request 12, Mr. Berxhiku states, “...[an identified individual] calls me a prolific emailer… and that I made outlandish claims that I was being racially abused at the hands of the [Department]…. [C]an he share these outlandish claims, he’s referring to in this email?” Reasonable Description of Records Sought A public records request must reasonably describe the record sought. See G. L. c. 66, § 10(a)(i). In Chawla, the Superior court found that under the Public Records Law “[t]he reasonable description requirements contemplates that a requesting party will identify documents or categories or documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept. of Revenue, Suffolk. Sup. No. 1 784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated, with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to the category of materials requested, will not satisfy this statutory standard.” (emphasis in original). Id. Based on the foregoing, with respect to Request 12, I find it is unclear what specific records Mr. Berxhiku is requesting. Mr. Berxhiku may wish to clarify his request to the Department in order to provide the sufficient particularity needed to search the Department's records. See G. L. c. 66, § 10(a)(i) (the request must reasonably describe the public record sought). Further, regarding Request 13, Mr. Berxhiku states, “…I have shared a police report with your office that clearly indicated that… 2 police officers were at my house on 7/23/23…. I am merely asking them to share the warrant that is required to enter someone’s house…. Did they enter my house without a warrant?” Possession, Custody or Control; Records in Existence 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.

Sergeant Andrew Devito SPR24/1902 Page 6 July 17, 2024 L. c. 66, § 10(a)(ii). However, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on the information provided in Mr. Berxhiku’s appeal petition, in conjunction with the Department’s response, it is unclear if the Department possesses records responsive to his request. If the Department does possess a responsive warrant, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Lowest paid employee In its response, the Department indicates: …[T]he good faith estimate to search for, locate, compile and make redactions required by law for the remaining materials identified is 226 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 ($25/hour/226 of hours). Although the Department indicates it will charge $25 per hour, it is unclear that this is the lowest rate for an employee capable of performing the tasks involved. Consequently, the Department must explain whether its hourly rate is that of the lowest paid employee with the necessary skill. Modification of requests In its response, the Department advises that “[g]iven the… Department’s significant law enforcement and public safety responsibilities and staffing considerations, the … Department is unable to further reduce the good faith cost estimate in response to this request, and further maintains that Mr. Berxhiku has been provided records previously at no charge on multiple occasions…. Without waiving the… Department’s rights Mr. Berxhiku is certainly entitled to narrow this request, either in time frame or in scope, if he wishes, and a revised estimate will be provided in accordance with the Public Records Law.” In light of the above, I encourage the parties to communicate further in order to facilitate producing records efficiently and affordably. Mr. Berxhiku may wish to narrow the parameters of his requests or include factors to enable the search to be processed. G. L. c. 66, § l0(a)(i).

Sergeant Andrew Devito SPR24/1902 Page 7 July 17, 2024 Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. In his appeal, Mr. Berxhiku stated, “[i]t is in the interest of the public to know, and no charges should be assessed in this matter, considering there’s foul play….” Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee assessed in its July 1, 2024 estimate is 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 (10) 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. Mr. Berxhiku may appeal the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku