Altin Berxhiku v. Billerica, Town of - Police Department (SPR 20242068)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 2, 2024 SPR24/2068 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 July 4, 2024, Mr. Berxhiku requested “...a copy of that [specified notification.” Concurrent with his public records request, in the July 4th correspondence to the Department, Mr. Berxhiku queried: …was the embassy/closest consulate of my country, notified? … what would possess these people, the Billerica police, to not allow me to have representation? Why was i not given access to my own lawyer? Did this email exchange between [an identified individual] the so called Billerica ... and the office of the Middlesex DA, have anything to do with this? Keep in mind the false charges were dismissed by the Middlesex DA for failure to prosecute. I am just trying to find out, what would possess people of authority to violate one’s right to representation and consular notification access? Claiming to not yet have received responsive records, Mr. Berxhiku petitioned this office and this appeal, SPR24/2068, was opened as a result. Subsequently, on July 23, 2024, the Department provided a response, which Mr. Berxhiku appealed on July 26, 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 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 SPR24/2068 Page 2 August 2, 2024 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. The Department’s July 23rd response In its July 23, 2024 response, the Department stated “[a]s an initial matter, after diligent search of Police Department records, there are no records responsive to Item 1.” Current Appeal In his appeal, Mr. Berxhiku stated, “[h]e’s not addressing the second part of my request.” No Duty to Answer Questions Mr. Berxhiku is advised that 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). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Conclusion Accordingly, where the Department has confirmed that it does not possess records responsive to the request, and has no duty to answer questions, 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, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku