Berxhiku, Altin v. Peace Officer Standards and Training Commission (SPR 20261078)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 7, 2026 SPR26/1078 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 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. SPR26/1078 Page 2 April 7, 2026 Previous Appeal The requested records were the subject of a previous appeal. See SPR26/0665 Determination of the Supervisor of Records (March 10, 2026). In my March 10th determination, I ordered the Commission to identify what records it intends to withhold from disclosure and explain how the requested records fall within the type of records contemplated in G. L. c. 6E, § 8(c)(2). The Commission responded on March 24, 2026. Unsatisfied with the Commission’s response, Mr. Berxhiku petitioned this office and this appeal, SPR26/1078, 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 contends: The Commission asserts that the phrase “records relating to a preliminary inquiry” extends to all records of any kind, including administrative intake records, metadata, correspondence, and even the existence of records. … The Commission’s March 24 response does not comply with the Public Records Law or the Supervisor’s prior order. It advances an overbroad interpretation of confidentiality, relies on unsupported assertions of legislative intent, and is contradicted by the Commission’s own handling of identical cases.

Randall E. Ravitz, Esq. SPR26/1078 Page 3 April 7, 2026 The Commission’s March 24th Response On March 24, 2026, the Commission stated 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: 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.

Randall E. Ravitz, Esq. SPR26/1078 Page 4 April 7, 2026 G. L. c. 6E, § 8(c)(2). In its response, the Commission stated: The Commission explained in its response to your February 13, 2026, public records request that “[a]ny ‘records relating to a preliminary inquiry or initial staff review used to determine whether to initiate an inquiry’ would be ‘confidential’ by statute” and thus not public records. M.G.L. c. 6E, § 8(c)(2); M.G.L. c. 4, § 7, cl. 26(a). To elaborate, the Commission’s governing statute provides that “[a]ll proceedings and records relating to a preliminary inquiry or initial staff review used to determine whether to initiate an inquiry shall be confidential . . . .” M.G.L. c. 6E, § 8(c)(2). The term “preliminary inquiry” refers to a type of initial evaluation by the POST Commission that is prescribed by statute. See M.G.L. c. 6E, §§ 8, 9, 10. … In the present matter, the Commission has made clear that any records relating to a preliminary inquiry or initial staff review used to determine whether to initiate an inquiry are confidential under M.G.L. c. 6E, § 8(c)(2). … Without confirming or denying the existence of an initial staff review or preliminary inquiry, the Commission addresses your assertion that a “confirmation receipt of a complaint[,] intake or tracking numbers[,] [and] [the Commission’s] correspondence with Billerica PD” are “routine administrative records” and are not “investigative deliberations.” This is incorrect and suggests a misunderstanding of the breadth of the confidentiality protections afforded by the Commission’s statute. M.G.L. c. 6E, § 8(c)(2) does not limit its confidentiality protections to substantive investigative findings or “investigative deliberations.” Rather, it affords confidentiality to “[a]ll proceedings and records relating to a preliminary inquiry or initial staff review” M.G.L. c. 6E, § 8(c)(2) (emphasis added); see also State Ethics Comm’n v. Doe, 444 Mass. 269, 279 n.1, 271-72 (2005) (Supreme Judicial Court citing analogous Ethics Commission provision, M.G.L. c. 268B, § 4(a), and observing that “[a]ll of the commission’s records and proceedings from a preliminary inquiry, or from any initial staff review to determine whether to initiate an inquiry, are … confidential” (emphasis added). The Commission’s confidentiality obligations therefore extend to the full universe of records relating to an initial staff review or preliminary inquiry, including the very categories of records you contend are disclosable. The Commission neither confirms nor denies the existence of any such records in this matter, but makes clear that if such records exist, they would be confidential as a matter of law and would not be subject to disclosure under the Massachusetts Public Records Law. …

Randall E. Ravitz, Esq. SPR26/1078 Page 5 April 7, 2026 The Commission appropriately maintains that it is not required to create a new record, provide legal analysis, or answer questions under the law. As the records are restricted from disclosure in their entirety by the Legislature under G. L. c. 6E, § 8(c)(2), as it operates through Exemption (a), to the extent that the records relate to a proceeding or a preliminary inquiry, I find the Commission has met its burden in responding to this request under the Public Records Law. See G. L. c. 6E, § 8(c)(2) (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). Conclusion Accordingly, I will 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. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku