Altin Berxhiku v. Billerica, Town of - Police Department (SPR 20251247)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 15, 2025 SPR25/1247 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 28, 2025, Mr. Berxhiku requested the following: [1] All police reports, citations, stop logs, field interview reports, dispatch logs, or any other documentation generated by the Billerica Police Department concerning any individual who was stopped, detained, or questioned while riding a bicycle by [an identified officer] within the past 12 months. [2] Any available body camera footage, cruiser camera footage, or dispatch audio relating to bicycle stops involving [an identified officer] within the same timeframe. [3] All internal communications (including but not limited to emails, text messages, or memos) referencing any such stop, encounter, or incident involving [an identified officer] and a bicyclist during this period. The Department provided a response on May 5, 2025. Unsatisfied with the Department’s response, Mr. Berxhiku petitioned this office and this appeal, SPR25/1247, 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 J. Devito SPR25/1247 Page 2 May 15, 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. 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 May 5th Response In its May 5, 2025 response, the Department stated, “[t]his request seeks the same documents sought in a prior request made in March 2025 in which the Department responded that it had no responsive documents… There are no records responsive to Items 1, 2 and 3 of your request.” Current Appeal In his appeal petition, Mr. Berxhiku claims that the Department is “…improperly combining multiple, unrelated requests into a single, inflated response,” and requests the following actions from this office: [1] Treat this bicycle stop records request separately and independently from any others I’ve submitted. [2] Instruct the Billerica Police Department to issue a specific response to this request alone—not a bundled estimate or generic exemption blurb. [3] If no responsive records exist, require a detailed sworn affidavit explaining what systems were searched, who conducted the search, and why no results were found—per the standards outlined in SPR21/1219 and SPR25/1026. In a telephone conversation with this office, the Department confirmed that it possesses no records responsive to Mr. Berxhiku’s request and further clarified that the identified officer has never stopped anyone on a bicycle. 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 SPR25/1247 Page 3 May 15, 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 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