Altin Berxhiku v. Billerica, Town of - Police Department (SPR 20251131)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 2, 2025 SPR25/1131 Sergeant Andrew 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 17, 2025, Mr. Berxhiku requested the following: [1] All emails and phone calls (including written summaries or logs of phone calls, if available) involving [an identified individual] or any members of the Middlesex [District] [Attorney’s] office in which, I [was] the subject or discussed. This includes any communications between [an identified individual] and other public officials, including [an identified individual], or any third-party individuals regarding me[;] [2] Any attachments sent with these communications, particularly those that may have been transmitted through an unsecured external interest server…[;] [3] A summary of the topics discussed in these emails or phone calls, especially those relating to any actions, investigations, or decisions that involved me, and any potential violation of my rights by your office. The Department provided a response on April 23, 2025. Unsatisfied with the response, Mr. Berxhiku petitioned this office and this appeal, SPR25/1131, 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 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 Devito SPR25/1131 Page 2 May 2, 2025 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. Att’y 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 23rd Response In its April 23, 2025 response, the Department informed Mr. Berxhiku that: [1] Document previously provided [an] email dated Thursday July 27, 2023 between [identified individual] and the [Middlesex District Attorney’s Office]. One telephone call between Lt. [identified individual] previously provided[;] [2] No record responsive to this request [Item 2][;] [3] No record responsive to this request [Item 3][.] Current Appeal In his April 23, 2025 petition to this office, Mr. Berxhiku stated, “[i]t is beyond obvious that no meaningful search or review was conducted.” 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). In a telephone conversation between a Public Records Division staff attorney and the Department on April 30, 2025, the Department confirmed that it has no records responsive to Items 2 and 3 of the request.

Sergeant Andrew Devito SPR25/1131 Page 3 May 2, 2025 Conclusion Where the Department has confirmed that it does not possess records 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. Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku