Altin Berxhiku v. Billerica, Town of - Police Department (SPR 20251251)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 13, 2025 SPR25/1251 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 April 18, 2025, Mr. Berxhiku requested the following regarding an identified police officer: [1] [His] dates of employment, ranks held, and current duty status[;] [2] Any military discharge documentation on file (e.g., DD-214 or military service summary), including date of separation, branch, and discharge classification[;] [3] All publicly releasable use-of-force incident reports and investigations involving [the officer], especially any corresponding to my arrest[;] [4] Any civilian complaints, sustained or not, filed against [the officer] since 2025[;] [5] Any documented psychological fitness evaluations conducted during or after his hiring, if such records are on file and not exempt[;] [6] Any internal affairs reviews or disciplinary actions arising from the arrest referenced above[;] [7] Has [the officer] ever fired a gun or killed anyone[?] 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

Sgt. Andrew Devito SPR25/1251 Page 2 May 13, 2025 The Department provided a response on May 5, 2025. Unsatisfied with the response, Mr. Berxhiku petitioned this office and this appeal, SPR25/1251, 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. 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. Current Appeal In his May 5, 2025 petition to this office, Mr. Berxhiku stated, “[Sgt. Devito] is misrepresenting what’s been released, denying the existence of highly likely records, and shielding misconduct under the false pretense of compliance.” The Department’s April 23rd Response In its May 5, 2025 response, the Department informed Mr. Berxhiku that: [1] [Item #1] 6/4/01-present, PTL, SGT, Active[;] [2] [Item #2] Record previously provided[;] [3] [Items #3, #4, and #5] Documents attached responsive to request[;] [4] [Item #6] No records responsive to your request[;] [5] [Item #7] No records responsive to your request[.]

Sgt. Andrew Devito SPR25/1251 Page 3 May 13, 2025 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). Conclusion Where the Department has confirmed that it does not possess records responsive to Mr. Berxhiku’s Item 6 and Item 7 requests, and has no duty to create records responsive to the requests and has provided responses to the other requests, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku