Altin Berxhiku v. Middlesex District Attorney's Office (SPR 20251388)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 30, 2025 SPR25/1388 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 March 17, 2025, Mr. Berxhiku requested the following: [1] Any and all communications between your office and [an identified individual] regarding the incident of July 24, 2023, including but not limited to emails, text messages, phone call logs, and internal memos. As a reminder this individual filed a false police report against me on 7/24/23. [2] Any reports, notes, or documentation from the Billerica Police Department regarding the July 24, 2023 incident involving [an identified individual], particularly any communications between your office and the police regarding the case. [3] Any communications between your office and the Billerica Police Department concerning me or my family from July 2023 to the present. [4] Any documentation or records related to the alleged Ring camera footage referenced in an investigation conducted by the Billerica Police Chief, including: - The source of the footage. - Any written requests or warrants obtained for viewing the footage. - The names and titles of individuals from your office who accessed or reviewed the footage. - Documentation regarding how the Billerica Police Department obtained this Ring camera footage from [an identified individual] on March 24, 2024, following my complaint of illegal harassment and the threatening letter I received from [an identified attorney]. 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. SPR25/1388 Page 2 May 30, 2025 [5] Any directives, guidance, or communications from your office to third parties, including private individuals, related to surveillance, monitoring, or other activities involving me or my family. [6] Records showing whether [an identified individual] is acting as an informant, paid associate, or in any official capacity for the Billerica Police Department. If she is not, provide documentation explaining the legal basis for obtaining and using her Ring camera footage. [7] Any records or communications indicating that your office has advised the Billerica Police Department on how to handle false reports filed against me and my family. Previous Appeal This request was the subject of a previous appeal. See SPR25/0876 Determination of the Supervisor of Records (April 15, 2025). In my April 15th determination, I ordered the Office to identify the records, categories of records, or portions of records it intends to withhold under Exemption (a) of the Public Records Law. Additionally, I ordered the Office to clarify whether any of the withheld records have been sealed pursuant to G. L. c. 276, §§ 100A-100C. The Office responded on May 12, 2025. Unsatisfied with the Office’s response, Mr. Berxhiku petitioned this office and this appeal, SPR25/1388, 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. 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. SPR25/1388 Page 3 May 30, 2025 The Office’s May 12th Response In its May 12, 2025 response, the Office stated: As to category 1, we have identified two emails responsive to your request. As to category 2, we have identified one document responsive to your request. These materials concern a criminal case which has been sealed. See G.L. c. 276, §§ 100A-100C. Access to records relating to sealed cases is limited to specific persons and circumstances. See, e.g., Commonwealth v. Gavin G., 437 Mass. 470, 473-475 (2002); see G.L. c. 276, § 100A. Because disclosure of these materials would implicate the underlying sealed case, this Office maintains that these materials cannot be disclosed as public records and that further information about these materials cannot be provided. See G.L. c. 4, § 7(26)(a)… As to categories 3, 4, 5, 6, and 7, please be advised that to the best of our knowledge, no records responsive to your request exist… Current Appeal In his appeal petition, Mr. Berxhiku argues the Office’s response is deficient for the following reasons: [1] Failure to Comply with April 1, 2025 [sic] Determination… [2] Unsupported Denial of Categories 3-7… [3] Improper Framing of a Sealed Case… [4] Late and Noncompliant Response… Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” 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. SPR25/1388 Page 4 May 30, 2025 The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Items 1 and 2 In its May 12, 2025 response, regarding Items 1 and 2 of the request, the Office cites G. L. c. 276, § 100A (governing requests to Commissioner of Probation to seal files); G. L. c. 276, § 100B (sealing records relative to child delinquency); and G. L. c. 276, § 100C (governing sealing of records following finding of not guilty, no probable cause, and dismissals) to withhold two responsive emails and one responsive document. Based on the information provided in the Office’s response, and where the responsive records are restricted from disclosure entirely by the Legislature under G.L. c. 276, §§ 100A- 100C as the statutes operate through Exemption (a) of the Public Records Law, I find that the Office has met its burden to withhold the identified responsive records. Items 3, 4, 5, 6 and 7 Regarding Items 3, 4, 5, 6 and 7 of the request, Mr. Berxhiku is advised that 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 records responsive to Items 1 and 2 are exempt from disclosure entirely and the Office possesses no records responsive to Items 3, 4, 5, 6 and 7 of 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). 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. SPR25/1388 Page 5 May 30, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku 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