Altin Berxhiku v. Middlesex District Attorney's Office (SPR 20251143)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 8, 2025 SPR25/1143 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 April 8, 2025, Mr. Berxhiku requested the following: [1] All written or electronic communications (including emails, memos, texts, and internal notes) exchanged between [an identified individual], and members of the Billerica Police Department — including but not limited to [an identified individual] and [an identified individual] — from January 1, 2023 through the present, in which [an identified individual] or any matters involving [an identified individual] are discussed. [2] The full contents of the email sent to you by [an identified individual] dated July 27, 2023, including any attachments or follow-up messages, wherein he references what “happened to [an identified individual]” on or about July 24, 2023 — during a time when [an identified individual] had an active criminal case pending in court. Please also include your full reply, which reportedly contained the phrase “I remember.” [3] Any requests made verbally or in writing by [an identified individual] or others in his department to your office that involve directing action toward [an identified individual], influencing your prosecutorial decision-making, or otherwise suggesting you “take care of” [an identified individual] while [an identified individual]’s case was pending. [4] Any internal notes, summaries, or communications generated within your office related to your role in that dismissed case, including any decisions, reviews, or analysis pertaining to prosecutorial strategy. [5] All records and correspondence relating to the July 24, 2023 911 call made by [an identified individual], including any internal determinations about whether the 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. SPR25/1143 Page 2 May 8, 2025 call contained false, misleading, or malicious content — and any documentation of your decision not to prosecute, including related memos, assessments, or legal analysis. [6] All communications and internal records concerning any complaints, investigations, or history associated with [an identified individual] as it relates to her conduct toward [identified individuals] [7] Any communications authored by you or received by your office responding to [an identified individual’s] emails dated April 1–3, 2024, and any commentary shared internally or with outside law enforcement regarding [an identified individual’s] inquiries. Previous Appeal This request was the subject of a previous appeal. See SPR25/1129 Determination of the Supervisor of Records (April 25, 2025). In my April 25th determination, I closed SPR25/1129 in light of the Office providing a written response to Mr. Berxhiku on April 24, 2025. Unsatisfied with the Office’s response, Mr. Berxhiku petitioned this office, and this appeal, SPR25/1143, 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. The Department’s April 24th Response In its April 24, 2025 response, the Office cited Exemption (a) to withhold records responsive to Items 1 through 4 of the request in their entirety. Specifically, regarding Items 1 through 4, the Office stated, “these requests reference a sealed criminal case. See G.L. c. 276, §§ 100A-100C. Access to records relating to sealed cases is limited to specific persons and

Meagan Horn, Esq. SPR25/1143 Page 3 May 8, 2025 circumstances. . . .” The Office additionally asserted that there were no records responsive to Items 5 and 6 of the request. Regarding Item 7, the Office advised Mr. Berxhiku that his, “request does not clearly identify which records [he] [seeks]” and cited Jaideep Chawla v. Dep’t of Revenue, Suffolk. Sup. No. 1784CV02087 (January 23, 2019) in support of this contention. 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 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