Altin Berxhiku v. Middlesex District Attorney's Office (SPR 20250876)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 15, 2025 SPR25/0876 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 17, 2025, Mr. Berxhiku requested the following: [1] Any and all communications between your office and [an identified individual] regarding the incident of July 24, 2023, including but not limited to emails, text messages, phone call logs, and internal memos. As a reminder this individual filed a false police report against me on 7/24/23. [2] Any reports, notes, or documentation from the Billerica Police Department regarding the July 24, 2023 incident involving [an identified individual], particularly any communications between your office and the police regarding the case. [3] Any communications between your office and the Billerica Police Department concerning me or my family from July 2023 to the present. [4] Any documentation or records related to the alleged Ring camera footage referenced in an investigation conducted by the Billerica Police Chief, including: - The source of the footage. - Any written requests or warrants obtained for viewing the footage. - The names and titles of individuals from your office who accessed or reviewed the footage. - Documentation regarding how the Billerica Police Department obtained this Ring camera footage from [an identified individual] on March 24, 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. SPR25/0876 Page 2 April 15, 2025 2024, following my complaint of illegal harassment and the threatening letter I received from [an identified attorney]. [5] Any directives, guidance, or communications from your office to third parties, including private individuals, related to surveillance, monitoring, or other activities involving me or my family. [6] Records showing whether [an identified individual] is acting as an informant, paid associate, or in any official capacity for the Billerica Police Department. If she is not, provide documentation explaining the legal basis for obtaining and using her Ring camera footage. [7] Any records or communications indicating that your office has advised the Billerica Police Department on how to handle false reports filed against me and my family. The Office provided a response on March 31, 2025. Unsatisfied with the response, Mr. Berxhiku petitioned this office and this appeal, SPR25/0876, 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 states: [T]he denial is overly broad and does not adequately consider the specific nature of my request....The response appears to assume that all requested documents fall

Daniel M. DeBlander, Esq. SPR25/0876 Page 3 April 15, 2025 under the sealing statute. However, my request includes administrative and procedural records (e.g., communications between agencies, requests for footage, and policies on handling false reports) that are not necessarily part of a sealed case. If some records are exempt, a proper response should indicate whether any responsive records exist that are not protected… I request that the agency conduct a proper search and release any documents that are not explicitly protected under G.L. c. 276, §§ 100A-100C. The Office’s March 31st Response In its March 31, 2025 response, the Office noted that the request sought “…copies of seven (7) categories of records concerning a sealed criminal case,” and stated: 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. 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, 54 (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.

Daniel M. DeBlander, Esq. SPR25/0876 Page 4 April 15, 2025 In its March 31st response, the Office cites G. L. c. 276, § 100A (governing requests to Commissioner of Probation to seal files); G. L. c. 276, § 100B (sealing records relative to child delinquency); and G. L. c. 276, § 100C (governing sealing of records following finding of not guilty, no probable cause, and dismissals). Based on the Office’s March 31st response, I find it is unclear whether any of the withheld records have actually been sealed pursuant to G. L. c. 276, §§ 100A-100C. 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, 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). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku