Altin Berxhiku v. Billerica, Town of - Police Department (SPR 20251252)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 16, 2025 SPR25/1252 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 3, 2025, Mr. Berxhiku requested: [1] All communications (emails, memos, reports, internal messages) between [four identified individuals] from January 1, 2021, to the present that reference [identified individuals;] [2] Any police reports, internal notes, surveillance logs, or intelligence files generated regarding [identified individuals;] [3] All directives, instructions, or guidance given to [an identified individual] by any member of the Billerica Police Department concerning [identified individuals;] [4] Any discussions or decisions made within the Billerica Police Department related to [identified individuals], including records that document the rationale behind these actions[;] [5] Any records related to the procurement and use of audio or video recordings obtained in connection to [identified individuals]. Previous Appeal This request was the subject of a previous appeal. See SPR25/1077 Determination of the Supervisor of Records (April 22, 2025). In my April 22nd determination, I ordered the 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 SPR25/1252 Page 2 May 16, 2025 Department to provide a further response. The Department responded on May 5, 2025, which included a $75.00 fee estimate for the production of records responsive to Item 2 of the request. Unsatisfied with the Department’s response, and objecting to the fees, Mr. Berxhiku petitioned this office and this appeal, SPR25/1252, 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. The Department’s May 5th Response In its May 5, 2025 response, the Department stated the following: Item # 1[:] Documents previously provided[.] Item #2[:] The department would need to review any documents/reports in which [an identified individual is] named and review its contents to determine if these reports contain complaints against [an identified individual]. The department anticipates that it has documents responsive to this request which are likely to contain information exempt under exemption (a), exemption (c), and/or exemption (f). The department estimates that it would take 5 hours to respond to this request based on the reports/CAD entries that would be responsive to this request. Specifically, the Department estimates that a search for these reports/CAD could be completed electronically within 10 minutes, and that another 5 minutes would be required to print these reports/CAD entries for review. . . . Estimate of time to search for and locate records as well as determine if the material contains any privileged information that may fall under a recognized exemption or a legally mandated protection: 5 hours/$25.00 by Police Department Records Access Officer.

Sergeant Andrew J. Devito SPR25/1252 Page 3 May 16, 2025 The Department provided further clarification on the calculation of its fee estimate for the production of records responsive to Item 2 of the request, as described above, stating, “[t]otal Estimate to search for, locate, compile, and make redactions required by law 5 hours; Total:$125.00. Minus Two Hours at $25/hour- $50.00 TOTAL ESTIMATE: $_75.00_” Additionally, the Department stated the following in its May 5, 2025 response: Item #3[:] No record responsive to this request. Item #4[:] No record responsive to this request. Item #5[:] No record responsive to this request. Current Appeal In his appeal petition, among other things, Mr. Berxhiku objects to the Department’s fee estimate and states, “[the Department] claims 5 hours of work, but subtracts two hours for reasons never explained. [The Department] provides no itemization of what is being searched.” Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. It is my understanding that there is an ongoing litigation in the United States District Court regarding this matter. This office has reviewed the trial court’s docket and verified that the civil litigation, relating to the records that are the subject of Mr. Berxhiku’s requests, is active and ongoing. See Berxhiku v. Frost et al, (United States District Court for the District of Massachusetts Docket No. 1:25-cv-11242 (May 06, 2025)). In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). Please note that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b).

Sergeant Andrew J. Devito SPR25/1252 Page 4 May 16, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku