Altin Berxhiku v. Billerica, Town of - Police Department (SPR 20250062)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 10, 2025 SPR25/0062 Andrew J. Devito Sergeant 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 four requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 20, 2024, Mr. Berxhiku requested: [1] … [T]he details of [an identified individual’s] sexual overtures… [;] [2] [A]ll emails between [two identified individuals] that [an identified individual] [is] the subject of[;] [3] [A]ll emails and phone calls of [three identified individuals] on 3/24/24 … regarding [an identified matter][;] [4] Was there [an identified individual], at [an identified location] on 7/24/23 … under direct orders from [an identified individual][?] The Department provided a response on January 7, 2025. Unsatisfied with the response, Mr. Berxhiku petitioned this office and this appeal, SPR25/0062, was opened as a result. Subsequent to the opening of this appeal, the Department provided a response on January 10, 2025. 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). 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

Andrew J. Devito SPR25/0062 Page 2 January 10, 2025 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. The Department’s January 7th and January 10th Responses Request #1 In its January 7, 2025 response, the Department informed Mr. Berxhiku that it was under no obligation to answer questions and that there were no records responsive to this request. Request #2 In its January 7, 2025 response, the Department stated that it had performed a diligent search and located no records responsive to this request. In its January 10, 2025 response, the Department stated that it had conducted a second search, employing the services of an information technology consultant, and had located no records responsive to this request. Request #3 In its January 7, 2025 response, the Department stated that it was unclear what documents this request was seeking, but that “… there are no phone calls or emails from [the identified individuals] on 3/24/2024 regarding [the identified matter].” In its January 10, 2025 response, the Department stated that it had conducted a second search, employing the services of an information technology consultant, and had located 17 email communications sent by one of the identified individuals on March 24, 2024. The Department provided those communications to Mr. Berxhiku. Request #4 In its January 7, 2025 response, the Department informed Mr. Berxhiku that it was under no obligation to answer questions and that there were no records responsive to this request.

Andrew J. Devito SPR25/0062 Page 3 January 10, 2025 Current Appeal In his January 7, 2025 petition to this office, Mr. Berxhiku expressed his belief that additional records responsive to his requests existed. In an email communication to this office on January 10, 2025, Mr. Berxhiku reiterated his position with regard to Requests #2 and #3. 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 Given that all responsive records in the Department’s custody have been provided and this office has no authority to compel the Department to create records, I will now consider this administrative appeal closed. If Mr. Berxhiku is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. 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