Altin Berxhiku v. Middlesex District Attorney's Office (SPR 20251264)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 16, 2025 SPR25/1264 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 19, 2025, Mr. Berxhiku requested “…copies of any and all records, documents, communications, internal notes, emails, or correspondence related to the coordinated misuse of sealed records and retaliatory conduct undertaken by four [identified individuals] at the Middlesex District Attorney’s Office.” Specifically, Mr. Berxhiku sought: [1] All records involving any discussion, access, reference, review, transmission, or internal use of my sealed criminal record (Lowell District Court, sealed November 15, 2023) by any of the individuals listed above. This includes: - Internal case notes, printouts, or folder references; - Discussions about the legality or advisability of using the sealed record; - Communications with any third party, including the Billerica Police Department, Massachusetts State Police, or other municipal/state agencies… [2] All emails, chats, memos, text messages, or meeting summaries involving [an identified individual]referencing efforts to prolong or “keep alive” the case after it should have been dismissed, including: - Emails from late 2022 to late 2023 referencing [an identified individual], “civil complaint,” or “Billerica”; - Coordination with Billerica Police Department (especially [an identified officer]); - Evidence of interference with the dismissal or sealing of the case. [3] All records involving [an identified individual]’s improper actions, including: 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. SPR25/1264 Page 2 May 16, 2025 - Use of a victim advocate to contact and pressure my wife via my personal phone; - Any reference to conversations with my wife at pre-trial hearings; - Her false statements in court, as detailed in my public records appeal SPR25/0752; - Communications where she mischaracterized sealed records or referred to my prior civil rights complaints. [4] All records in which [an identified individual] accessed, referenced, or described my sealed case—after November 15, 2023. This includes her participation in the March 2025 records response where she, once again, falsely discussed the status or availability of sealed judicial information… [5] All communications where any of these four individuals contacted or discussed contacting my private attorney, for the purpose of: - Getting me to drop or slow down my public records requests; - Pressuring me to stop complaining about misconduct by the Billerica Police; - Attempting to interfere with or silence my constitutionally protected speech, especially after I accused the BPD of delayed response during a life-threatening medical emergency involving my son. The Office responded on May 6, 2025. Unsatisfied with the Office’s response, Mr. Berxhiku petitioned this office and this appeal, SPR25/1264, was opened. 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.

Meagan Horn, Esq. SPR25/1264 Page 3 May 16, 2025 The Office’s May 6th Response In its May 6, 2025 response, the Office stated, “[p]lease be advised that no records exist which are responsive to your requests detailed in items 1 through 5 above…” Current Appeal In his appeal petition, Mr. Berxhiku states, “[t]he response…falsely claimed that ‘no records exist’ responsive to items 1 through 5 of my request. This claim is demonstrably false…” On May 12, 2025, the Office confirmed that it possesses no records responsive to Mr. Berxhiku’s request. 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). Further, 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). Conclusion Given that the Office possesses no records responsive to Mr. Berxhiku’s request, and this office has no authority to compel the Office to create records, 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 of Massachusetts. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku