Altin Berxhiku v. Middlesex District Attorney's Office (SPR 20251128)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 8, 2025 SPR25/1128 Meagan Horn, Esq. Assistant District Attorney Middlesex District Attorney's Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney Horn: 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

Meghan Horn, Esq. SPR25/1128 Page 2 May 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. Previous Appeal This request was the subject of a previous appeal. See SPR24/0842 Determination of the Supervisor of Records (April 8, 2025). In my April 8, 2025 determination, I directed the Office to clarify its claims under Exemption (a) for withholding the responsive records. I further ordered the Office to identify the records it intended to withhold under Exemption (a). The Office responded on April 23, 2025. Unsatisfied with the Office’s response, Mr. Berxhiku petitioned this office, and this appeal, SPR25/1128, 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.

Meghan Horn, Esq. SPR25/1128 Page 3 May 8, 2025 Current Appeal In his appeal petition, Mr. Berxhiku asserts that the “the Middlesex District Attorney’s Office’s April 23, 2025 letter . . . fails to comply with the lawful order issued by your office on April 8, 2025, under SPR25/0842.” The Office’s April 23rd Response In its previous response, the Office claimed Exemption (a) of the Public Records Law to withhold the responsive records in their entirety. Specifically, under Exemption (a), the Office cited G. L. c. 276, § 100A-C and stated, “. . . 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.” In its April 23, 2025 response, the Office provided additional information regarding its claims under Exemption (a) to withhold the requested records. Specifically, the Office advised: This letter is in further response to your March 13, 2025, request under the Public Records Law, M.G.L. c. 66, § 10 et seq., and to the Supervisor of Record’s April 8, 2025, order. Your request sought six (6) categories of records relating to a specified criminal case. The criminal case referenced in your requests has been sealed by operation of statute. See G.L. c. 276, §§ 100A-100C. Access to records relating to sealed cases is limited to specific persons and circumstances. See, e.g., Commonwealth v. Gavin G., 437 Mass. 470, 473-475 (2002); see G.L. c. 276, § 100A. Where your requests inextricably implicate a sealed criminal case, the responsive records cannot be disclosed as public records. See G.L. c. 4, § 7(26)(a) (records “by necessary implication exempted from disclosure by statute” are not public records). Active Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Subsequent to the opening of this appeal, on May 7, 2025, Mr. Berxhiku advised this office that he filed litigation in United States District Court relating to these records requests. This office has reviewed the trial court’s docket and verified that the civil litigation, relating to

Meghan Horn, Esq. SPR25/1128 Page 4 May 8, 2025 the records that are the subject of Mr. Berxhiku’s requests, is active and ongoing in the United States District Court. See Berxhiku v. Frost et al, (United States District Court for the District of Massachusetts Docket No. 1:25-cv-11242 (May 06, 2025)). In light of the pending matter, I decline to opine on these matters at this time. See 950 C.M.R. 32.08(2)(b). Please note that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku