Altin Berxhiku v. Billerica, Town of - Police Department (SPR 20251403)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 2, 2025 SPR25/1403 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 May 5, 2025, Mr. Berxhiku requested: [1] Please produce any and all email communications, text messages, attachments, reports, notes, or correspondence — regardless of format — between: [two identified individuals], or any designee thereof,[;][an identified individual] and any member of the Billerica Police Department[;][an identified individual] and any member of the Middlesex District Attorney’s Office … from January 1, 2023 to the present, that: Refer to or discuss Altin Berxhiku (including but not limited to ‘Berxhiku,’ ‘Altin,’ or any other spelling or variation) Refer to Case No. 2311CR3411 or any derivative investigative report [2] Include or attach the MSP report 2024-110-217/1 authored by [an identified individual] [3] Refer to any action or discussion involving sealed court records, including 911 calls and BPD reports filed under the aforementioned case[.] Contain commentary, opinions, or characterizations about Mr. Berxhiku, including the July 27, 2023 email in which [an identified individual] refers to me as a “prolific emailer” making “outrageous claims” [4] Include discussion about how to respond to public records requests concerning Mr. Berxhiku [5] Relate to the public dissemination or release of the aforementioned MSP report — including the decision-making chain and whether [an identified individual] authorized the release to [an identified individual.] The Department responded on May 19, 2025. Unsatisfied with the response, Mr. 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 SPR25/1403 Page 2 June 2, 2025 Berxhiku petitioned this office and this appeal, SPR25/1403, 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. 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. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first two hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4).

Sergeant Andrew J. Devito SPR25/1403 Page 3 June 2, 2025 The Department’s May 19th Response In its May 19, 2025 response, the Department states: Item 1 At this time the department anticipates it has documents related to your request…. As such, in order to produce any responsive records, the Department would need to review such records in order to segregate and redact all information exempt from disclosure pursuant to exemptions (a), (c), and (f). The Department therefore estimates that it would take 6 hours to segregate and redact exempt information. The Department will not charge for the first two hours of segregation and redaction, but will thereafter charge $25.00 per hour, which is the hourly rate equal to or less than the hourly rate of the lowest paid employee in the Department who has the necessary skill required to search for, compile, and segregate and redact the requested records for a total of $150.00[.] Item 2 The Department anticipates it has records responsive to this request. These records may contain information exempt from disclosure under exemptions (a), (c) or (f). The Department anticipates that it will take 1 hour to search for these records and segregate and redact exempt information from records for a total of $25.00. Item 3 This request does not sufficiently describe what records are being sought, and therefore the Department cannot respond to this request. A requester is required to identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for and then make a prompt production. See Jaideep Chawla v. Dept. of Public Revenue, Suffolk Superior Court No. 1784CV02087 (January 23, 2019). Here, it is unclear what documents are involving sealed court records. Item 4 and 5 No records responsive to this request[.] Fee Estimate As noted above with respect to your requests the good faith estimate to search for, locate, compile, and make redactions required by law for the remaining materials identified above is 7 hours, which will be conducted by the Department’s Records Access Officer. The total estimate to search for and locate the records as detailed

Sergeant Andrew J. Devito SPR25/1403 Page 4 June 2, 2025 above is ($25 hour/ 7 hours). To receive those records, please submit payment to this office made out to the Town of Billerica, and the necessary work will be conducted, subject to any withholding or redactions under the Public Records Law. Please note that the actual cost of producing the records may vary once the Town begins preparing the records for response. At this time, it is anticipated that the Town will be able to produce non-exempt records electronically. Please be advised, however, that if there are any responsive records that do not exist in electronic format, and if there are any documents that may only be redacted manually and not electronically (and thus must be printed prior to redaction), copying charges will apply at the rate of $.05 per page. Insofar as there are any records that need to be transferred to a USB drive, you will also be charged for the cost of the drive as permitted by law. Upon receipt of your payment in the amount of $125.00 made payable to the Town of Billerica, the Department will begin the work necessary to search, segregate, and redact (where appropriate) the documents you have requested…. Total Estimate to search for, locate, compile, and make redactions required by law 7 hours; Total: $175.00. Minus Two Hours at $25/hour- $50.00 TOTAL ESTIMATE: $125.00 Current Appeal In his appeal petition, Mr. Berxhiku states that he is taking issue with the Department’s fee estimate, its Chawla claim and the Department’s claim that it has no responsive records for Items 4 and 5. Active 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. On May 7, 2025, Mr. Berxhiku advised this office that he filed litigation in Massachusetts District Court relating to pending records request. 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 request, is active and ongoing in the Massachusetts District Court. See Berxhiku v. Frost et al, (Massachusetts District Court Docket No. 1:25-cv-11242 (May 06,

Sergeant Andrew J. Devito SPR25/1403 Page 5 June 2, 2025 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). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku