Altin Berxhiku v. Middlesex County District Attorney's Office (SPR 20251567)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 10, 2025 SPR25/1567 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 May 19, 2025, Mr. Berxhiku requested: [1] All internal emails, drafts, legal memoranda, meeting notes, and communications generated by your office in the preparation, review, or submission of the petition addressed to Supervisor Manza Arthur on May 14, 2025. This includes communications involving but not limited to: [a] [four identified individuals][;] [b] Any supervisory or executive staff who reviewed or authorized the petition[;] [2] [No request][;] [3] Any exhibits, attachments, or referenced public records requests (PRRs) included with the petition, including the materials labeled as “Exhibit A”[;] [4] All communications referencing [an identified individual] specifically in connection with the above petition or related to decisions about how to respond to his public records requests between April 30 and May 14, 2025[;] [5] Any internal discussion or legal analysis concerning the petition’s framing under M.G.L. c. 66, § 10(c), including evaluation of whether the identified requests met the statutory threshold for exemption. 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

Meaghan Horn, Esq. SPR25/1567 Page 2 June 10, 2025 The Office responded on June 3, 2025. Unsatisfied with the Office’s response, Mr. Berxhiku petitioned this office and this appeal, SPR25/1567, 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. The Office’s June 3rd Response In its June 3, 2025 response, the Office withheld records responsive to Item 1 of the request pursuant to Exemption (d) of the Public Records Law. The Office informed Mr. Berxhiku that he had previously been provided with records responsive to Item 3 of the request, and that it possessed no records responsive to Items 4 and 5 of the request. Current Appeal In his June 3, 2025 petition to this office, Mr. Berxhiku characterized the Office’s claim under Exemption (d) as overbroad. Mr. Berxhiku further contended that he had not been provided with all records responsive to Item 3 and that the Office was in possession of records responsive to Items 4 and 5. This office has reviewed the docket of the trial court and confirmed that the requested records are the subject of active and ongoing litigation in Middlesex Superior Court. See Altin Berxhiku v. Middlesex District Attorney’s Office (Superior Court Docket No. 2581CV01364).

Meaghan Horn, Esq. SPR25/1567 Page 3 June 10, 2025 Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending litigation, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). I further decline to opine on the applicability of Exemption (d) of the Public Records Law to the requested records. It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku