Altin Berxhiku v. Middlesex District Attorney's Office (SPR 20251202)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 13, 2025 SPR25/1202 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] All communications … between any employee of the Middlesex District Attorney’s Office and my former attorney … regarding me or my public records activity between April 15, 2023 and June 15, 2023. [2] Internal communications within the MDAO (emails, memos, meeting notes, etc.) referencing me, my name, or my public records requests during the same period [between April 15, 2023 and June 15, 2023]. [3] Calendar entries, meeting invites, or internal tracking of calls, emails, or meetings with [an identified individual] in the date range noted above [between April 15, 2023 and June 15, 2023]. [4] The name(s) of any prosecutor(s) of staff member(s) who may have contacted [an identified individual] with a message that I should cease submitting public records requests to your office. Previous Appeal This request was the subject of a previous appeal. See SPR25/1106 Determination of the Supervisor of Records (April 30, 2025). In my April 30th determination, I learned that the Office intended to provide a further response. The Office provided a response on April 30, 2025. Unsatisfied with the Office’s response, Mr. Berxhiku petitioned this office and this appeal, 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. SPR25/1202 Page 2 May 13, 2025 SPR25/1202, 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. Current Appeal In his appeal, Mr. Berxhiku states, “[w]hile ADA … asserts that a search was conducted using the keyword ‘Berxhiku,’ she conspicuously fails to mention any search using my first name (‘Altin’), my email address, or any other known identifying information included in my original request and numerous prior communications with the office. This omission renders the search legally deficient and fails to meet the minimum obligations under G.L. c. 66, § 10 and 950 CMR 32.00. A ‘reasonable search’ under the law requires more than a single keyword query using only a surname — particularly when the request explicitly references ‘my name’ and when the custodian is fully aware of the requester's identity.” The Department’s April 30th Response In its April 30, 2025 response, the Office states, “[a] search was conducted of the Office’s email system for internal emails within this period containing ‘Berxhiku.’ Please be advised that the search returned no emails. Further, a search for the other items, memos or meeting notes, did not reveal the existence of any. As such, please be advised that this Office does not have any records in its possession, custody or control which would be responsive to your request.” 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

Daniel M. DeBlander, Esq. SPR25/1202 Page 3 May 13, 2025 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 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 May 13, 2025, the Office confirmed that it searched for and has found no responsive records to Mr. Berxhiku’s request. Conclusion Where the Office 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