Altin Berxhiku v. Middlesex District Attorney's Office (SPR 20250842)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 8, 2025 SPR25/0842 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] Communications with [two identified individuals] . . . . [a] Copies of all communications, including emails, meeting notes, or any other records of conversations between your office [two identified individuals] . . . that pertain to [an identified individual][;] [b] A summary of the topics discussed during these communications[;] [2] Prosecutorial Conduct and Case Handling: [a] Any internal records, correspondence, or case notes related to the charges brought against [an identified individual] that were later dismissed . . .[;] [b] Documentation or explanation regarding why, on multiple occasions, prosecutors from your office informed the court that they were unfamiliar with the case . . .[;] [3] Court Proceedings on August 7th and September 15th: [a] Any records, transcripts, or internal communications regarding the prosecution’s handling of [an identified] case during these proceedings[;] [b] An explanation of why your prosecutor stated, in open court, that they were unfamiliar with the case after [an identified individual] provided testimony on August 7th . . .[;] [c] Any internal records or communications regarding the statement made on September 15th by the prosecutor claiming unfamiliarity with the case[;] [4] Conduct of the Victim Advocate: 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. SPR25/0842 Page 2 April 8, 2025 [a] Copies of any messages or communications left by the victim advocate assigned to this case . . .[;] [b] Any policies or guidelines within your office regarding witness contact, and any internal records related to concerns of witness tampering in [an identified] case[;] [5] Denial of Legal Counsel: [a] Any documentation, reports, or internal communications regarding [an identified individual’s] request to speak with [an identified] attorney. . .[;] [b] Any policies or procedures that would explain why [the identified individual’s] request . . . was not facilitated[;] [6] Medical Treatment While in Custody: [a] Records related to [an identified individual’s] medical requests while in custody . . .[;] [b] Any documentation explaining why these medications were not provided despite a recorded high blood pressure reading. The Office responded on March 27, 2025. Unsatisfied with the Office’s response, Mr. Berxhiku petitioned this office, and this appeal, SPR25/0842, 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 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.

Daniel M. DeBlander, Esq. SPR25/0842 Page 3 April 8, 2025 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 asserts, “[t]he response dated March 27, 2025, states that my request is denied under Exemption (a) because it concerns a sealed criminal case. However, I believe this denial is overly broad and inconsistent with established interpretations of the Public Records Law.” The Office’s March 27th Response In its March 27, 2025 response, the Office cited Exemption (a) to withhold 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, 545-46 (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 March 27th response, the Office cites G. L. c. 276, § 100A (establishing procedure for requests to seal criminal court records; effect of sealing records), G. L. c. 276, § 100B (establishing procedure for requests to seal juvenile delinquency court records; effect of sealing

Daniel M. DeBlander, Esq. SPR25/0842 Page 4 April 8, 2025 records), and G. L. c. 276, § 100C (providing for sealing of criminal court records in certain circumstances; effect upon employment reports; enforcement). Under the statutes cited above, the Office provides the following: This letter is in response to your . . . March 13, 2025, request of this Office pursuant to the Public Records Law, G.L. c. 66, § 10 et seq., seeking copies of six (6) categories of records concerning a matter that your request acknowledges concerns a sealed criminal case. Under exemption (a) (statutory) to the definition of “public records,” G.L. c. 4, §7(a), records concerning sealed criminal cases are not subject to disclosure under the Public Records Law as they are by necessary implication exempted from disclosure pursuant to the statutory scheme governing the sealing of criminal records. See G.L. c. 276, §§ 100A to 100C. Based on the information provided in the Office’s March 27th response, I find it is uncertain how the statutes cited above operate through Exemption (a) of the Public Records Law to withhold the responsive records from disclosure. Please be advised that for Exemption (a) to apply, a statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Consequently, it is unclear how the statutes cited above, either specifically or by necessary implication, would permit the Office to withhold the requested records. Additionally, it is unclear from the Office’s response which specific records the Office intends to withhold. The Office must identify the records, categories of records, or portions of records it intends to withhold under Exemption (a). 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”). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Office must clarify these matters. 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).

Daniel M. DeBlander, Esq. SPR25/0842 Page 5 April 8, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku