Altin Berxhiku v. Billerica, Town of - Police Department (SPR 20251069)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 30, 2025 SPR25/1069 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 April 12, 2025, Mr. Berxhiku requested the following: [1] Official duty schedule and shift assignment for [an identified] Officer . . . on Friday, April 5, 2024, including start and end times, duty designation (on-duty, off-duty, personal time, vacation, etc.), and whether he was assigned any active responsibilities during that date[;] [2] Timesheet or payroll record submitted by or on behalf of [an identified] Officer . . . covering the pay period that includes April 5, 2024[;] [3] Any and all leave request forms or approvals submitted for April 5, 2024, including vacation leave, personal leave, or other absence notifications[;] [4] Any travel or per diem expense reports or reimbursements submitted by [an identified] Officer . . . for travel occurring between April 3, 2024, and April 6, 2024, including but not limited to out-of-state travel. The Department provided a response on April 17, 2025. Unsatisfied with the Department’s response, Mr. Berxhiku petitioned this office and this appeal, SPR25/1069, 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 SPR25/1069 Page 2 April 30, 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 17th Response In its April 17, 2025 response, in response to Item 1 of the request, the Department indicated that the identified officer was scheduled for an “Off Duty-Scheduled Day[.]” The Department further provided one record responsive to Item 2 of the request in the form of a one- page payroll report and additionally noted that it did not possess records responsive to Items 3 and 4 of Mr. Berxhiku’s request. Current Appeal In his appeal petition, Mr. Berxhiku states that the Department possesses additional records responsive to his request. Specifically, he contends that the payroll report responsive to Item 2 of his request “fails to reflect any time off, vacation, or scheduled leave for April 5.” Mr. Berxhiku further asserts, “[t]he Department also admitted in writing that [‘]no record responsive to request[’] exists for item #3 of my request, which explicitly asked for leave request forms or approvals for April 5, 2024.” In a subsequent telephone conversation with this office on April 30, 2025, the Department confirmed that all responsive records have been provided to Mr. Berxhiku. 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

Sergeant Andrew J. Devito SPR25/1069 Page 3 April 30, 2025 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). Conclusion Accordingly, where the Department has confirmed that it provided all responsive documents for this request and that it does not possess any additional documents responsive to Mr. Berxhiku’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Berxhiku is unsatisfied with the resolution of this administrative appeal, he is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. 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