Altin Berxhiku v. Middlesex District Attorney's Office (SPR 20251134)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 7, 2025 SPR25/1134 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] Any records, communications, or documentation pertaining to [an identified individual’s] interactions with your office regarding wiretapping laws and consent for audio recordings . . .[;] [2] Any records regarding investigations, reports, or records from the Billerica Police Department related to [two identified individuals] . . .[;] [3] The names of any individuals within your office or the Billerica Police Department who may have been involved in or had access to any illegal recordings or surveillance of [two identified individuals][;] [4] Any records or communications that reference or were related to physical threats or actions taken against [an identified individual]. . .[;] [5] . . . [R]ecords relating to any communications between your office and [an identified individual] regarding [an identified] case[;] [6] . . . [R]ecords that detail the involvement of [identified individuals] . . . being encouraged to file false reports . . . . Previous Appeal This request was the subject of a previous appeal. See SPR24/0840 Determination of the Supervisor of Records (April 8, 2025). In my April 8, 2025 determination, I ordered the Office to clarify whether it possesses additional records responsive to the request. The Office responded on April 23, 2025. Unsatisfied with the Office’s response, Mr. Berxhiku petitioned this office, and this appeal, SPR25/1134, was opened as a result. 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

Meagan Horn, Esq. SPR25/1134 Page 2 May 7, 2025 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. The Office’s April 23rd Response In its previous response, the Office stated that the “Supplemental Billerica PD Report” was the only record responsive to the request and further noted that Mr. Berxhiku included a copy of this report with his March 13, 2025 request to the Office. In its April 23, 2025 response, the Office confirmed it did not possess additional responsive records and advised, “[i]n our prior response, we provided a report, which is the only record responsive to your request. After conducting a search internally, please be advised that no additional records responsive to your request exist.” Current Appeal In his appeal petition, Mr. Berxhiku contends the Office’s April 23, 2025 response, “simply reasserted — without any explanation, detail, or specificity — that [‘]no additional records responsive to your request exist.[’]” No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee 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). 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).

Meagan Horn, Esq. SPR25/1134 Page 3 May 7, 2025 Where the Office has confirmed that it has no additional responsive records in its possession, I find that Mr. Berxhiku’s appeal regarding his March 13, 2025 request is resolved. Conclusion Accordingly, where the Office does not possess any additional 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, he is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(A)(c). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku