Altin Berxhiku v. Billerica, Town of - Police Department (SPR 20242151)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 12, 2024 SPR24/2151 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 several categories of records including: [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 SPR24/2151 Page 2 August 12, 2024 Previous appeals This request was the subject of previous appeals. See SPR24/1636 Determination of the Supervisor of Records (June 13, 2024) and SPR24/1902 Determination of the Supervisor of Records (July 17, 2024). The Department responded on July 29, 2024. Unsatisfied with the Department’s response, Mr. Berxhiku petitioned this office and this appeal, SPR24/2151, was opened as a result. 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, 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 29th fee estimate In its July 29, 2024 fee estimate, the Department stated, “[t]he Department’s revised good faith estimate of total hours to respond to these requests above is 281.5 hours. The Department will not charge for the first two hours of time required to respond to these requests, but will assess a fee of $25/hour for the remaining 279.5 hours. The $25 fee represents an hourly rate less than the hourly rate of the lowest paid employee who has the necessary skill to segregate and redact the requested records. For all records that must be printed, there is a copying charge of $0.05 per page.” The Department provided details regarding the search, segregation and redaction calculation of hours for each request as follows: Request 2: two hours to search and locate records responsive to Request 2. Specifically, the Department estimates that it would take approximately 15-30 minutes to locate the recordings from March 24, 2024 as the recordings are

Sergeant Andrew Devito SPR24/2151 Page 3 August 12, 2024 stored electronically and would then need to listen to the recording to segregate the requested materials. The Department estimates that it will take an hour and a half to then segregate and redact exempt information. Request 5: The Department did not provide a fee estimate for responding to this request because all documents that exist and would be responsive to this request are captured by Request 7. Request 6: The Department estimated that it would take 22 hours to respond to this request based on the estimated 3,000 emails that would be responsive to this request. Specifically, the Department estimates that a search for these emails could be completed electronically within 15-30 minutes, and that another 30 minutes would be required to print these emails for review. The Department estimates that it would take approximately 30 seconds per email to segregate and redact exempt information. As such, the Department has revised its estimate to 26 hours total to respond to Request 6. Request 7: The Department estimated that approximately 30,000 emails would be responsive to this request, and that it would take approximately 200 hours to search for, print, and segregate and redact those emails. Specifically, the Department estimates that a search for these emails could be completed electronically within 30 minutes, and that 1 hour would be required to print those emails for segregation and redaction. The Department estimates that it would take approximately 30 seconds per email to segregate and redact exempt information. As such, the Department revised its estimate to 251.5 hours total to respond to Request 7. Request 8: The Department estimated that it would take 2 hours to respond to this request, which seeks a copy of “discovery documents … sent [by the Department] to the district attorney’s office.” The Department will need to fully review the file to determine what documents were sent to the District Attorney’s office, which the Department estimates will take 1 hour [and] segregation and redaction will take 1 hour. As such, the total time to respond to Request 8 is estimated to be 2 hours. No Duty to Create Records Under the Public Records Law, the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 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). In its response to Request 13, the Department stated that it “... has conducted a search and has not located any documents responsive to this request.”

Sergeant Andrew Devito SPR24/2151 Page 4 August 12, 2024 Accordingly, where the Department has confirmed that it does not possess records responsive to this request, and has no duty to create records responsive to the request, I find that this portion of Mr. Berxhiku’s appeal is resolved. The Department provided the following statutes pursuant to segregation and redaction, “G.L. c. 6, § 167, which prohibits the disclosure of Criminal Offender Record Information, and G. L. c. 41, § 97D which prohibits disclosure reports of rape, sexual assault, and domestic violence.” Upon review, with the exception of Request 2 which cites Exemption (c) of the Public Records Law, the Department claimed Exemptions (c) and (f) of the Public Records Law for Requests 5, 6, 7, and 8 to segregate and redact the requested records. It is unclear if the Department is charging for segregation and/or redaction of the records not 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). The Department must clarify. 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 29, 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