Altin Berxhiku v. Billerica, Town of - Town Clerk (SPR 20251099)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 30, 2025 SPR25/1099 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].” Previous Appeal This request was the subject of a previous appeal. See SPR25/0853 Determination of the Supervisor of Records (April 9, 2025). In my April 9th determination, I ordered the Town to clarify whether it possesses records responsive to Mr. Berxhiku’s request and whether the Town is withholding records subject to the attorney-client privilege. The Town provided a response on April 22, 2025. Unsatisfied with the response, Mr. Berxhiku petitioned this office and this appeal, SPR25/1099, 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. 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 SPR25/1099 Page 2 April 30, 2025 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 Town’s April 22th Response In its April 22, 2025 response, the Town stated: In response to your April 28, 2024, request, the Town provided the only responsive document on May 9, 2024. Contrary to your assertions in this appeal, both the April 28, 2024, request and the March 13, 2025 request seek the same documents. To clarify, however, there are no new documents that have been generated since the April 28, 2024 request that are responsive to your request, such that no documents have been withheld. Current Appeal In his appeal petition, Mr. Berxhiku alleged that the Town’s response was deficient for the following reasons: [1] Improper Reliance on a Prior Request – [The Town] claims that the March 13, 2025 request is duplicative of an April 28, 2024 request. However… the current response, as well as in prior communications, directly contradicts this. [2] Contradictory Statements from Other Agencies – In a recent letter dated April 18, 2025, from the Billerica Police Department… the department explicitly acknowledges that responsive records to my March 2025 request do exist and that a fee estimate for accessing these records will be forthcoming. This directly contradicts [the Town]’s position and further confirms the existence of documents currently being withheld. [3] Confirmed Existence of Records by Chief of Police – …an earlier email from [an identified officer] dated June 10, 2022… states that he “contacted the Building Department” in relation to my concerns. This communication confirms that responsive records exist regarding interdepartmental discussions between the police and the Building Department about me. [4] Withholding Without Privilege Log – Although [the Town] previously claimed attorney-client privilege, [it] has failed to provide a privilege log...

Donna McCoy SPR25/1099 Page 3 April 30, 2025 In a telephone conversation between an attorney of this Division and the Town on April 29, 2025, the Town confirmed that it provided the only responsive record to Mr. Berxhiku on May 9, 2024 and possesses no additional 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). Conclusion Given that the Town possesses no additional records responsive to Mr. Berxhiku’s request, and this office has no authority to compel the Town 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 Mark LaLumiere