Altin Berxhiku v. Billerica, Town of - Police Department (SPR 20251026)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 28, 2025 SPR25/1026 Sergeant Andrew J. Devito Records Access Officer 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 March 19, 2025, Mr. Berxhiku requested the following: [1] Police reports or records: Any official documentation related to the stop involving [identified parties], including the officer’s report, citations, or any other relevant documents. [2] Body camera footage: Any available body camera footage or recordings relating to this incident. [3] Emails/Communications: Any communications regarding the incident, including internal communications, emails, or memos concerning the stop involving [identified parties]. Previous Appeal This request was the subject of a previous appeal. See SPR25/0916 Determination of the Supervisor of Records (April 14, 2025). In my April 14th determination, I closed SPR25/0916 in light of the Department providing a response on April 14, 2025. Unsatisfied with the Department’s response, Mr. Berxhiku petitioned this office and this appeal, SPR25/1026, was opened as a result. 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 SPR25/1026 Page 2 April 28, 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). 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 April 14th Response In its April 14, 2025 response, the Department stated, “…after diligent search of Police Department records, there are no records responsive to Item 1, 2 or 3 of this request.” Current Appeal In his appeal petition, Mr. Berxhiku states, “[m]y request was based on a verified public Google review alleging that [an identified officer] pulled over a resident… in Billerica for allegedly riding a bicycle ‘for no apparent reason’… If the BPD claims there are ‘no responsive records’ to that name, then the RAO has an obligation to perform a broader search.” In a subsequent telephone conversation with this office on April 15, 2025, the Department confirmed that it possesses no records responsive to Mr. Berxhiku’s request. 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). Further, 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).

Sergeant Andrew J. Devito SPR25/1026 Page 3 April 28, 2025 Conclusion Given that the Department possesses no records responsive to Mr. Berxhiku’s request, 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 of Massachusetts. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku