Altin Berxhiku v. Billerica, Town of - Town Clerk (SPR 20251972)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 21, 2025 SPR25/1972 Donna McCoy Town Clerk Town of Billerica 365 Boston Road Billerica, MA 01821 Dear Ms. McCoy: I have received the petition of Altin Berxhiku appealing the response of the Town of Billerica (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 26, 2025, Mr. Berxhiku requested the following: 1. All invoices, billing statements, contracts, or engagement letters related to legal representation of the Town of Billerica and/or its employees (including [three named individuals]) in connection with the federal lawsuit Berxhiku v. Frost et al., Civil Action No. 1:25-cv-11242-LTS (U.S. District Court, District of Massachusetts). 2. All records showing payment, approval of payment, or reimbursement for legal services rendered in the above matter, including payment vouchers, accounting records, or check disbursement documentation. 3. Any documents reflecting how legal counsel was selected or authorized to represent the Town and/or its employees in this case, including RFPs, emails, meeting minutes, board authorizations, or insurance carrier correspondence. The Town responded on July 7, 2025. Unsatisfied with the Town’s response, Mr. Berxhiku petitioned this office, and this appeal, SPR25/1972, 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 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

Donna McCoy SPR25/1972 Page 2 July 21, 2025 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 Town’s July 7th Response In its July 7, 2025 response, the Town states that “they do not have any records” responsive to the request. Current Appeal In his appeal petition, Mr. Berxhiku contends: [T]he subject of the request — invoices, payments, or engagement documents related to legal representation of Town employees in Berxhiku v. Frost et al., 1:25-cv-11242-LTS — is a federal civil rights lawsuit involving high-ranking Billerica officials. It is implausible that no records exist in any department, including the Town Manager’s Office, Finance Department, or legal counsel’s office. In a subsequent telephone conversation with this office on July 21, 2025, the Town confirmed that it possesses no records responsive to Mr. Berxhiku’s request. 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). 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).

Donna McCoy SPR25/1972 Page 3 July 21, 2025 Conclusion Given that the Town possesses no records responsive to Mr. Berxhiku’s request, and this office has no authority to compel the Town 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