Altin Berxhiku v. Middlesex District Attorney's Office (SPR 20250881)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 9, 2025 SPR25/0881 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: [1] A full copy of the email exchange between your office and [an identified individual], including any attachments, with particular attention to the phrase, ‘I remember’ as referenced in your response to [an identified individual’s] email. [2] A full description of any attachments [an identified individual] sent with the email, specifically regarding any materials transmitted through an unsecured external internet server, as indicated by the highlighted section in the email. [3] A summary of the topics discussed between you and [an identified individual], and whether these discussions contributed to the repeated violations of my rights by your office. The Office provided a response on March 31, 2025. Unsatisfied with the response, Mr. Berxhiku petitioned this office and this appeal, SPR25/0881, 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, § 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. SPR25/0881 Page 2 April 9, 2025 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 31st Response In its March 31, 2025 response, the Office provided records responsive to the request and withheld an email attachment, stating “the attachment to the responsive email chain is itself barred from public disclosure under exemption (a) (statutory) of the Public Records Law. G. L. c. 4, § 7(26)(a)…. As contemplated by G. L. c. 41, § 97D. It is a criminal offense to disclose such reports except to certain statutorily define[d] individuals. As such this report has been withheld. There are no records providing a description of the exempt attachment nor or [sic] there any records comprising a summary of the topics discussed in the responsive email….” Current Appeal In his appeal petition, Mr. Berxhiku stated: The response from the Middlesex DA’s office included references to sealed records inappropriately. These references did not justify their inclusion and were not compliant with the guidelines for handling sealed records…. The redactions I made did not alter the context or content of the response, indicating that the original references to sealed records were unnecessary and improper…. The DA’s office ignored the specific contents of my request and provided the same email that was attached to the original public record request, failing to address the email exchange and the phrase ‘I remember,’ which suggests prior conversations not covered by any exemption. I respectfully request that the Supervisor of Records review the original response from the Middlesex DA’s office and determine whether the references to sealed records were appropriate. Additionally, I request that the DA’s office be required to address the specific contents of my public records request, including the email exchange and the phrase ‘I remember,’ which indicates prior conversations not covered by any exemption. Enclosed with this letter are copies of my original request, the response from the Middlesex DA’s office (with my redactions), and any relevant correspondence.

Daniel M. DeBlander, Esq. SPR25/0881 Page 3 April 9, 2025 Item 1 Based on the foregoing, where Mr. Berxhiku redacted the Office’s response to his request and asked this office to “review the original response from the Middlesex DA’s office and determine whether the references to sealed records were appropriate,” I find the basis of his 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. If Mr. Berxhiku seeks additional records other than what has been provided, he is advised to clarify the requested records or submit a public records request that reasonably describes the records sought to enable the Office to identify the record(s). Once clarification has been provided or a request has been submitted, the Office must provide a response. Items 2 and 3 Mr. Berxhiku is advised that the duty to comply with requests for records extends only 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). Pursuant to the Public Records Law, a custodian 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). Where Items 2 and 3 of Mr. Berxhiku’s request asks the Office to create records, I find that the Office has no duty under the Public Records Law to create such records. Conclusion Accordingly, 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. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku