Altin Berxhiku v. Billerica, Town of - Police Department (SPR 20251249)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 16, 2025 SPR25/1249 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, “all communications … between [two identified individuals] of the Billerica Police Department for the period from April 1, 2025 through April 28, 2025. This request specifically seeks all records of communications concerning, referencing, or relating to: [1] Social media activity, including but not limited to Twitter usage, posting strategies, or recommendations to cease or limit posting; [2] Payroll records, public disclosures, and the emerging contradictions between actual payroll records and the prior public statements made by the Billerica Police Department; [3] Any instructions, recommendations, or orders from [one named individual] to [another named individual] to alter his public communications, refrain from tweeting, “lay low,” or otherwise engage in damage control; [4] Any discussions regarding public perception, media attention, or internal management of [an identified individual’s] social media activity; [5] Any meetings, in-person conversations, or strategic planning between [two identified individuals] related to minimizing public exposure during this timeframe. The Department responded on May 5, 2025. Unsatisfied with the Department’s response, Mr. Berxhiku appealed, and this case, SPR25/1249, 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 SPR25/1249 Page 2 May 16, 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 May 5th Response In its May 5, 2025 response, the Department stated: [1] No records responsive to this request [2] No records responsive to this request [3] This request does not reasonably describe what records are sought, and the Department therefore has no obligation to respond. See Friedman v. Division of Administrative Law Appeals, 103 Mass. App. Ct. 806 (2024) [4] No records responsive to this request [5] No records responsive to this request [6] No records responsive to this request[.] Current Appeal In his appeal to this office, Mr. Berxhiku states, “the denial of responsive records for all six items, without a single record produced or partially redacted, strains credulity—especially given the documented internal knowledge (including whistleblower tips) that prompted the request in the first place.” No Duty to Create Records Please note that 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). Further, under the Public Records Law, a public employee is

Sergeant Andrew J. Devito SPR25/1249 Page 3 May 16, 2025 not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). On May 14, 2025, the Department confirmed that it has no responsive records to Mr. Berxhiku’s request, including Item 3. Conclusion Where the Department 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. 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. See G. L. 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