Altin Berxhiku v. Middlesex District Attorney's Office (SPR 20251284)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 13, 2025 SPR25/1284 Meagan Horn, Esq. Assistant District Attorney Middlesex County 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 County 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 23, 2025, Mr. Berxhiku requested: [A]ll public records in the custody or control of the Middlesex District Attorney’s Office (MDAO) related to the unlawful blocking, filtering or restriction of [an identified individual’s] personal email address … [1] All emails, memos, IT requests, or internal communications concerning the restriction, blocklisting, or “allowed senders list” configuration applied to [an identified email address] including: [a] Email server logs or error reports [b] Any administrative action by IT staff or mail server administrators [c] Direct requests from [an identified individual] to restrict [an identified email address]. [2] All internal discussions or correspondence referencing [an identified individual or their email address] in connection with: [a] Public records requests [b] Civil rights complaints [c] Criticism of MDAO staff [d] Attempts to “slow down,” “block,” or “silence” [an identified individual’s] correspondence [3] All email access logs or rule settings applied to the mailbox of [an identified individual], that would: 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

Megan Horn, Esq. SPR25/1284 Page 2 May 13, 2025 [a] Block unauthenticated users [b] Filter emails based on sender [c] Prevent responses from reaching [an identified individual] [4] Any and all references to: [a] Microsoft Exchange/Office 365 settings involving [an identified individual] [b] Complaints or concerns raised internally about receiving [an identified individual’s] messages [c] Justifications given—if any—for denying delivery of public communications from [an identified individual.] 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 May 6th Response In its May 6, 2025 response, the Office informed Mr. Berxhiku that it possessed no records responsive to his request. The Office stated that the email address at issue had become inactive and no longer accepted email. Current Appeal In his May 6, 2025 petition to this office, Mr. Berxhiku characterized the Office’s response as inaccurate, and sought the disclosure of responsive records. In a telephone conversation with this office on May 12, 2025, the Office confirmed that it did not possess any responsive records. The Office further confirmed that the email address at

Megan Horn, Esq. SPR25/1284 Page 3 May 13, 2025 issue was inactive and no longer accepting any email communications because the individual to whom the address belonged was no longer employed by the Office. 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). 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. 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