Altin Berxhiku v. Department of Children and Families (SPR 20241271)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 10, 2024 SPR24/1271 Steven S. Treat, Esq. Assistant General Counsel Department of Children and Families 600 Washington Street Boston, MA 02210 Dear Attorney Treat: I have received the petition of Altin Berxhiku appealing the response of the Department of Children and Families (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 11, 2024, Mr. Berxhiku requested, “[o]n your paragraph 6 you say there’s photos of bumps and bruises from 2020…provide these pictures…” Mr. Berxhiku also requested, “[o]n paragraph 9 you mention an alleged video shown to the police…provide this non-existing video you based your decision on.” The Department responded on April 25, 2024. Unsatisfied with the Department’s response, Mr. Berxhiku appealed and this case, SPR24/1271, 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. 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

Steven S. Treat, Esq. SPR24/1271 Page 2 May 10, 2024 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 April 25th response In its April 25, 2024 response, the Department stated: The laws that prohibit the release of these records include, but are not limited to: G. L. c. 119, §§ 51E, 51F [redacted by Mr. Berxhiku] c. 112, §§ 135-135B (limiting release of social worker/client communications); G. L. c. 66A (limiting release of information concerning data subjects); G. L. c. 4, § 7 (26) (c) (prohibiting the disclosure of information regarding a personally named individual the disclosure of which may constitute an invasion of personal privacy); 110 CMR 12.00 (regulating the release of Department records); 42 USC § 671(a)(8) (Title IV-E of the Social Security Act); 42 USC § 510a(b)(2)(B)(viii)- (xi); 45 CFR § 205.50 (Federal regulation of Title IV-E)…Accordingly, this information is also “specifically or by necessary implication exempted from disclosure by statute”…[G. L. c. 119, § 51E] requires that this information is kept confidential…information may only be provided to parents or their legal counsels, guardians, reporting agencies, review boards, child welfare agencies, or social workers…[G. L. c. 119, § 51F] requires that any information contained in a central registry of information created by [redacted by Mr. Berxhiku] “shall be confidential” and may only be disclosed to statutorily enumerated parties… In his appeal, Mr. Berxhiku stated, “I am 100% sure, and under pains and penalties o[f] perjury that these records do not exist. They simply do not exist and were made up by the record keeper.” Mr. Berxhiku further queried, “[h]ow can something that doesn’t exist be exempt from public record laws?” Unclear Appeal Based on the foregoing, where Mr. Berxhiku states that the requested records do not exist the basis of this appeal is unclear. In compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has occurred. G. L. c. 66, § 10A(a). It is uncertain whether Mr. Berxhiku is alleging a violation of G. L. c. 66, § 10. Conclusion Mr. Berxhiku is reminded that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(1)(f). Based on the above, I will now consider this administrative appeal closed.

Steven S. Treat, Esq. SPR24/1271 Page 3 May 10, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku