Altin Berxhiku v. Middlesex District Attorney's Office (SPR 20251103)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 30, 2025 SPR25/1103 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 April 7, 2025, Mr. Berxhiku requested the following records: [1] The source from which the two individuals obtained my sealed records. [2] The legal authority under which these records were accessed, reviewed, or disclosed. [3] Any documentation or communication related to the release, review, or possession of my records by these individuals in connection with this matter. [4] Any internal communications, notes, emails, memos, or other records held by your office or exchanged with the Massachusetts State Police regarding this meeting or my records. The Office provided a response on April 22, 2025. Unsatisfied with the Office’s response, Mr. Berxhiku petitioned this office and this appeal, SPR25/1103, 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 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. SPR25/1103 Page 2 April 30, 2025 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. Att’y 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 April 22nd response In its April 22, 2025 response, the Office states, “[a]fter reviewing your request, please be advised that this Office does not have any records in its possession, custody or control which would be responsive to your request.” Current Appeal In his appeal to this office, Mr. Berxhiku states: The MDAO’s April 22 response asserts that the office possesses no responsive records. However, this claim is both legally and factually insufficient. The meeting in question occurred on MDAO premises, with full awareness of ADA staff members. The meeting involved the discussion of sealed materials. This alone creates a compelling basis to believe that relevant records exist, including: Visitor logs (confirming the identities of the two officers), Calendar invites, emails, or internal correspondence, Communications between MDAO and Massachusetts State Police, Any documentation authorizing or acknowledging the release or review of sealed records.... It is not credible that no records — not even scheduling, emails, or logs — exist documenting a meeting with two law enforcement officials about sealed records on MDAO property. No Duty to Create Records Please note that 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). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance

Daniel M. DeBlander, Esq. SPR25/1103 Page 3 April 30, 2025 with the Public Records Law, 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). In a telephone call between a staff attorney of the Public Records Division and the Office on April 28, 2025, the Office confirmed that it searched for and has found no responsive records to Mr. Berxhiku’s request. Conclusion Where the Office has confirmed that it does not possess records responsive to Mr. Berxhiku’s request, and has no duty to create records responsive to the request, 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