Altin Berxhiku v. Middlesex District Attorney's Office (SPR 20251323)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 21, 2025 SPR25/1323 Meagan Horn, Esq. Assistant District Attorney Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney Horn: I have received the petitions of Altin Berxhiku appealing the response of the Middlesex District Attorney’s Office (Office) to requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 9, 2025, Mr. Berxhiku requested: [1] All records including, but not limited to, emails, internal notes, phone logs, voicemail metadata, and case file entries reflecting communication between the Middlesex District Attorney’s Office and [an identified individual], concerning [an identified individual], during the period April 12, 2024, through May 3, 2024. [2] [A]ny written records retention policies, SOPs, or internal guidelines used by the Middlesex District Attorney’s Office that govern: The retention or deletion of voicemail messages left by staff or ADAs for external parties; The documentation or logging of phone calls made by your office to external individuals, including attorneys; The retention of internal communications, emails, calendar events, or case management entries that reflect external communications. Previous Appeal The request was the subject of a previous appeal. See SPR25/1145 Determination of the Supervisor of Records (April 28, 2025). In my April 28th determination, I learned the Office intended on providing Mr. Berxhiku with a supplemental response. The Office responded on May 12, 2025. Unsatisfied with the Office’s response, Mr. Berxhiku appealed, and this case, SPR25/1323, 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. SPR25/1323 Page 2 May 21, 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. Att’y 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 12th Response In its May 12, 2025 response, the Office states, “[a]s to part 1, following a review of our records, please be advised that there are no records responsive to your request. Further, as to part 2, please be advised that this Office does not have any written policies or internal guidelines responsive to your request….” Current Appeal In his appeal to this office, Mr. Berxhiku states, “[the Office’s] conclusory letter, claiming ‘no responsive records’ exist, is … facially implausible... I specifically named two ADAs … described the exact nature of the records (calls, voicemail, metadata, case notes), and attached written confirmation from [an identified individual] himself. [He] explicitly stated that he received a voicemail from the MDAO and returned the call, speaking to a male ADA who expressed concerns about my communications with the office.” No Duty to Create Records 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 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.

Meagan Horn, Esq. SPR25/1323 Page 3 May 21, 2025 32.04(5). On May 20, 2025, the Office confirmed that it searched for and has found no records responsive 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