Altin Berxhiku v. Billerica, Town of - Town Clerk (SPR 20250853)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 9, 2025 SPR25/0853 Donna McCoy Town Clerk Town of Billerica 365 Boston Road Billerica, MA 01821 Dear Ms. McCoy: I have received the petition of Altin Berxhiku, appealing the response of the Town of Billerica (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 13, 2025, Mr. Berxhiku requested “… communications between [two identified individuals] regarding [an identified individual] … [and] all records of any communications [between two identified individuals] concerning [an identified individual].” The Town provided a response on March 28, 2025. Unsatisfied with the response, Mr. Berxhiku petitioned this office and this appeal, SPR25/0853, 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. 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

Donna McCoy SPR25/0853 Page 2 April 9, 2025 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 Town’s March 28th Response In its March 28, 2025 response, the Town stated: As this recent public records request is a duplicate of your previous request, submitted on 4/28/24, I am responding to once again inform you that the Town has produced all records within our possession regarding your Public Records request. Furthermore, any communications between myself and [an identified individual] are exempt from disclosure as they are attorney/client privilege. There have been no new relevant records produced since your last records request on 4/28/24. Current Appeal In his appeal petition, Mr. Berxhiku alleged that the Town’s response was deficient for the following reasons: [1] Failure to Conduct a Reasonable Search – The response does not indicate that a new search was conducted to determine if additional records exist beyond those previously provided … [2] Misapplication of Attorney-Client Privilege – The assertion of attorney-client privilege is not applicable in this case, as [an identified attorney] was not [an identified individual]’s private attorney but rather an attorney hired by the Town of Billerica with taxpayer funds to assist with legal matters … [3] Lack of Specificity in Attorney-Client Privilege Claim – Even if attorney- client privilege were applicable, it must be properly asserted with a privilege log detailing which records are being withheld and why they qualify under the exemption. [4] Failure to Address the Full Scope of the Request – My request sought specific communications that may not have been included in the prior response, particularly regarding interactions between [an identified individual] and [an identified individual] In support of his petition, Mr. Berxhiku provided several emails that reference communications between the individuals identified in the request.

Donna McCoy SPR25/0853 Page 3 April 9, 2025 Possession, Custody, or Control The Town 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). 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). However, in accordance with the Public Records Law, 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 Town’s March 28th response and the information provided in Mr. Berxhiku’s appeal petition, it is unclear whether the Town possesses records responsive to Mr. Berxhiku’s request. Further, it is unclear whether the Town is withholding records pursuant to the attorney-client privilege. 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”).The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Mr. Berxhiku with a response to his 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 substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku Mark LaLumiere