Berxhiku, Altin v. Massachusetts Peace Officer Standards and Training Commission (SPR 20260665)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 10, 2026 SPR26/0665 Randall E. Ravitz, Esq. Records Access Officer Massachusetts Peace Officer Standards and Training Commission 100 Cambridge Street Boston, MA 02114 Dear Attorney Ravitz: I have received the petition of Altin Berxhiku appealing the response of the Massachusetts Peace Officer Standards and Training Commission (Commission) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 13, 2026, Mr. Berxhiku requested: [1] Confirmation of receipt of my November 28, 2025 complaint. [2] The assigned intake number, case number, or tracking identifier. [3] The name and title of any intake officer or investigator assigned. [4] The current status of the matter (e.g., pending intake review, under investigation, closed, referred, etc.). [5] Any correspondence between the POST Commission and the Billerica Police Department, [an identified individual], or any representative thereof concerning: [a] [An identified individual], and/or [b] The failure to report sustained findings as required under M.G.L. c. 6E § 4(d) and 555 CMR 8.00. [6] Any internal memoranda, notes, or determinations regarding whether: [a] [An identified individual]’s sustained violations have been flagged for inclusion in the Monthly Sustained Allegations and Discipline Report; and [b] [An identified individual]’s failure to report those sustained findings has been evaluated as a separate violation. 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

Randall E. Ravitz, Esq. SPR26/0665 Page 2 March 10, 2026 The Commission responded on February 26, 2026, and assigned reference number 26- 058 to this request. Unsatisfied with the Commission’s response, Mr. Berxhiku petitioned this office and this appeal, SPR26/0665, 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. Current Appeal In his appeal petition, Mr. Berxhiku contended: Even assuming investigative materials may be exempt, my request sought administrative records… … [The Commission] provided only a generalized assertion of confidentiality and refused to confirm whether records exist. The Commission’s February 26th Response On February 26, 2026, the Commission stated that it withheld certain records pursuant to Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). The Commission cited G. L. c. 6E, § 8(c)(2) as the basis for withholding the requested records. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are:

Randall E. Ravitz, Esq. SPR26/0665 Page 3 March 10, 2026 specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the Commission cites G. L. c. 6E, § 8(c)(2), which provides in relevant part: The division of police standards may initiate a preliminary inquiry into the conduct of a law enforcement officer upon receipt of a complaint, report or other credible evidence that is deemed sufficient by the commission that the law enforcement officer may have engaged in prohibited conduct. All proceedings and records relating to a preliminary inquiry or initial staff review used to determine whether to initiate an inquiry shall be confidential, except that the executive director may turn over to the attorney general, the United States Attorney or a district attorney of competent jurisdiction evidence which may be used in a criminal proceeding. In its response, the Commission argues: Any “records relating to a preliminary inquiry or initial staff review used to determine whether to initiate an inquiry” would be “confidential” by statute. M.G.L. c. 6E, § 8(c)(2). Any such documents thus would also not constitute “public records” pursuant to M.G.L. c. 4, § 7, cl. 26(a), which exempts from that category any materials or data that are “specifically or by necessary implication exempted from disclosure by statute.” At no point will the Commission confirm or deny the existence of a preliminary inquiry or whether it is determining to

Randall E. Ravitz, Esq. SPR26/0665 Page 4 March 10, 2026 initiate one, and this letter should not be construed as providing any such confirmation or denial. Therefore, at this time, the Commission has no public records responsive to your request. Based on the Commission’s February 26th response, it is unclear what records the Commission intends to withhold from disclosure. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”); see also 950 C.M.R. 32.06(3)(c)(4). Further, it is unclear how the requested records fall within the type of records contemplated in G. L. c. 6E, § 8(c)(2). The Commission merely cites G. L. c. 6E, § 8(c)(2), without any further explanation as to the statute’s applicability to the responsive records. A records custodian is required to not only cite an exemption but to specifically explain the applicability of the exemption to the requested records for compliance with the Public Records Law. G. L. c. 66, § 10(b)(iv). The Commission must clarify these matters. Conclusion Accordingly, the Commission is ordered to provide Mr. Berxhiku with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Mr. Berxhiku may further appeal the substantive nature of the Commission’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku