Altin Berxhiku v. Middlesex County Sheriff's Office (SPR 20251405)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 3, 2025 SPR25/1405 Megan J. McLatchey, Esq. Associate Legal Counsel Middlesex Sherriff’s Office 12 Gill Street, Suite 4700 Woburn, MA 01801 Dear Attorney McLatchey: I have received the petition of Altin Berxhiku appealing the response of the Middlesex Sherriff’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 May 3, 2025, Mr. Berxhiku requested “…[his] blood pressure readings and any related medical documentation taken by your facility’s medical staff on July 24, 2023, at or about 2:00 AM, during [his] intake at the Middlesex House of Correction, for one overnight stay.” The Office responded on May 16, 2025. Unsatisfied with the Office’s response, Mr. Berxhiku petitioned this office and this appeal, SPR25/1405, 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

Megan J. McLatchey, Esq. SPR25/1405 Page 2 June 3, 2025 Status of the Requestor; Reason for the Request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Berxhiku’s interest in obtaining the records shall have no bearing on the public nature of the records. The Office’s May 16th Response In its May 16, 2025 response, the Office provided Mr. Berxhiku with two release authorization forms and stated: …[B]efore the MSO can release any information protected under the Criminal Offender Record Information (“CORI”) statute, the MSO requires a completed MSO CORI Release Form. This form is necessary to verify your identity and ensure the protection of sensitive CORI information… Additionally, because the information you seek relates to protected medical information under the Health Insurance Portability and Accountability Act (“HIPAA”), the MSO also requires a completed Authorization to Use or Disclose Protected Health Information Form… Please complete the forms in their entirety and return them to us at your earliest convenience. Once we receive the completed forms, we will be able to proceed with processing your request. Current Appeal In his appeal petition, Mr. Berxhiku argued his opposition to filling out the authorization forms based on the following grounds: [1] This is a sealed case. Any CORI demand is void on its face. [2] I am the subject of the records. No HIPAA waiver is necessary. [3] CORI has been misused… I will not cooperate with a corrupt internal process to “request” what I have a legal right to. [4] …[A]gencies may not impose additional procedural hurdles or demand internal forms to block valid public records requests… Based on Mr. Berxhiku’s appeal and the Office’s response, it is unclear whether the Office possesses records responsive to the request. The duty to comply with requests for records extends to those 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). However, 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). Consequently, the Office must clarify whether the requested records exist.

Megan J. McLatchey, Esq. SPR25/1405 Page 3 June 3, 2025 Where the Office has indicated its willingness to process Mr. Berxhiku’s request, this office encourages Mr. Berxhiku and the Office to continue communicating to facilitate providing any existing records. Conclusion Accordingly, the Office is ordered to provide Mr. Berxhiku with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Mr. Berxhiku may appeal the substantive nature of the Office’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku