Altin Berxhiku v. Middlesex District Attorney's Office (SPR 20250837)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 9, 2025 SPR25/0837 Daniel M. DeBlander, Esq. Assistant District Attorney Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney DeBlander: I have received the petition of Altin Berxhiku, appealing the response of the Middlesex District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 13, 2025, Mr. Berxhiku requested “…copies of any records related to communications between your office and [an identified individual].” Specifically, Mr. Berxhiku sought: [1] Any records, including but not limited to emails, letters, phone logs, or internal memos, documenting contact between your agency and [an identified individual] on or around May 3, 2024. [2] Any documentation authorizing or justifying such contact. The Office provided a response on March 27, 2025. Unsatisfied with the response, Mr. Berxhiku petitioned this office and this appeal, SPR25/0837, 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. 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

Daniel M. DeBlander, Esq. SPR25/0837 Page 2 April 9, 2025 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 Office’s March 27th Response In its March 27, 2025 response, the Office stated, “…there are no records in our possession, custody or control that are responsive to your request.” Current Appeal In his appeal petition, Mr. Berxhiku stated: Given that [an identified individual] was contacted by the Middlesex District Attorney’s Office on or around May 3, 2024, it is reasonable to believe that records exist related to that communication. The response does not indicate whether a thorough search was conducted across all relevant systems, including email servers, internal correspondence logs, or case management databases … The response from MDAO does not specify how the search was conducted or which records repositories were reviewed. In support of his petition, Mr. Berxhiku provided an email communication in which the identified individual confirmed “…the DA’s office call [sic] me and left a voice mail and I returned their call.” In a subsequent telephone conversation with this office on April 9, 2025, the Office stated that it does not retain copies of the voicemail messages its staff leave for external entities. The Office further 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).

Daniel M. DeBlander, Esq. SPR25/0837 Page 3 April 9, 2025 Conclusion Given that the Office possesses no records responsive to Mr. Berxhiku’s request, and this office has no authority to compel the Office 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