Altin Berxhiku v. Middlesex District Attorney's Office (SPR 20250840)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 8, 2025 SPR25/0840 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 the following: [1] Any records, communications, or documentation pertaining to [an identified individual’s] interactions with your office regarding wiretapping laws and consent for audio recordings . . .[;] [2] Any records regarding investigations, reports, or records from the Billerica Police Department related to [two identified individuals] . . .[;] [3] The names of any individuals within your office or the Billerica Police Department who may have been involved in or had access to any illegal recordings or surveillance of [two identified individuals][;] [4] Any records or communications that reference or were related to physical threats or actions taken against [an identified individual]. . .[;] [5] . . . [R]ecords relating to any communications between your office and [an identified individual] regarding [an identified] case[;] [6] . . . [R]ecords that detail the involvement of [identified individuals] . . . being encouraged to file false reports . . . . The Office responded on March 27, 2025. Unsatisfied with the Office’s response, Mr. Berxhiku petitioned this office, and this appeal, SPR25/0840, was opened as a result. Purpose of Request; Identity of Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons 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. SPR25/0840 Page 2 April 8, 2025 in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Berxhiku’s purpose in making the request has no bearing on the public status of any existing responsive records. 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. The Office’s March 27th Response In its March 27, 2025 response, the Office stated, “[f]ollowing a review of our records and to the best of our knowledge, the only record responsive to your request is the Supplemental Billerica PD Report that you provided along with this request.” Current Appeal In his appeal petition, Mr. Berxhiku contends that the Office possesses additional responsive records. He states, “it is likely that additional records . . . exist within the Middlesex District Attorney’s Office . . . that were not identified or disclosed.” Based on Mr. Berxhiku’s appeal, in conjunction with the Office’s response, it is unclear if the Office possesses any additional records responsive to the request. 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). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). The Office must clarify whether it possesses additional records responsive to the request.

Daniel M. DeBlander, Esq. SPR25/0840 Page 3 April 8, 2025 Conclusion Accordingly, the Office is ordered to provide Mr. Berxhiku with a response to his 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 appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku