Altin Berxhiku v. Billerica, Town of - Police Department (SPR 20242754)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 21, 2024 SPR24/2754 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 SPR24/2754 Page 2 October 21, 2024 Previous appeals These requests were the subject of previous appeals. See SPR24/1636 Determination of the Supervisor of Records (June 13, 2024); SPR24/1902 Determination of the Supervisor of Records (July 17, 2024); SPR24/2151 Determination of the Supervisor of Records (August 12, 2024); SPR24/2411 Determination of the Supervisor of Records (September 9, 2024) and SPR24/2579 Determination of the Supervisor of Records (September 27, 2024). The Department responded on October 4, 2024. Unsatisfied with the Department’s response, Mr. Berxhiku petitioned this office and this appeal, SPR24/2754, 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). In his appeal, Mr. Berxhiku has requested a waiver of the fee estimate. 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.

Sergeant Andrew Devito SPR24/2754 Page 3 October 21, 2024 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) (emphasis added). The Department’s October 4th fee estimate In its October 4, 2024 fee estimate, the Department stated, “[o]n September 27, 2024, the Supervisor of Public Records issued an order in SPR24/2579, which relates to previous appeals (SPR24/1636, SPR24/1902, SPR/2151, and SPR/2411). The Billerica Police Department (the “Department”) is providing this response in accordance with that order. In previous responses, the Department provided explanations of its fee estimates to respond to various public records requests. Please refer to the Department’s prior responses, including the Department’s most recent response dated September 13, 2024 (enclosed for convenience), for an explanation of those fee estimates.” With regard to request 13, the Department previously stated it had no responsive records. In its prior response dated September 13, 2024, the Department explained that its “. . . 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 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

Sergeant Andrew Devito SPR24/2754 Page 4 October 21, 2024 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. In its October 4, 2024 response, the Department stated that “...the Department’s prior fee estimates are for fees that will be charged only for segregating and redacting information under exemption (a) of the public records laws, which exemption requires the Department to redact information that is exempt pursuant to statute (in this case, the Department anticipates that the documents requested are likely to contain information that must be redacted pursuant to G.L. c. 6, § 167 and/or G.L. c. 41, § 97D). The Department will not charge fees for the segregation and redaction of information pursuant to exemption (c) and/or exemption (f)...” In light of the information provided in the Department’s October 4th response and its prior responses, I find the Department has met its burden to establish that it would take this amount of time to search for, segregate or redact, compile and reproduce the responsive records. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). I encourage Mr. Berxhiku and the Department to communicate further in order to facilitate producing records efficiently and affordably. Mr. Berxhiku may wish to modify his requests to enable the Department to produce records efficiently and affordably. Conclusion Accordingly, I will consider this administrative appeal closed.

Sergeant Andrew Devito SPR24/2754 Page 5 October 21, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku