Altin Berxhiku v. Middlesex District Attorney's Office (SPR 20251754)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 30, 2025 SPR25/1754 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 June 3, 2025, Mr. Berxhiku requested the following: [1] All written or electronic communications (including emails, memos, texts, Teams/Slack messages, or internal directives) between any staff of the Middlesex District Attorney’s Office (MDAO) and the Middlesex Sheriff’s Office (MSO) from July 22 through July 26, 2023, that reference: - My name: Altin Berxhiku - My intake or detention at the Middlesex House of Correction - Any discussion of charges, legal status, classification, or medical care[;] [2] Any communications between MDAO and the Billerica Police Department, or involving any third party, regarding the decision to detain, transfer, or classify me between July 22–26, 2023. [3] Any internal communications within MDAO referencing: - My request for legal counsel during detention - Failure to notify my country of origin despite international consular requirements for foreign-born U.S. citizens - My medical condition during transport or intake, including any reference to blood pressure concerns or treatment delay [4] Any communications referencing sealed court records or case status being discussed or disclosed after the issuance of a sealing order, especially in connection with coordination between MDAO and MSO. 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. SPR25/1754 Page 2 June 30, 2025 [5] Any communications or instructions to MSO regarding how I was to be handled, classified, treated, or transported — including discussions of whether or not to initiate medical attention or delay it. [6] Any communications from MDAO staff regarding whether to cooperate with public records requests concerning this matter, including emails referencing me or my requests by name or implication. The Office responded on June 17, 2025. Unsatisfied with the Office’s response, Mr. Berxhiku petitioned this office and this appeal, SPR25/1754, 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 17th Response In its June 17, 2025 response, the Office stated, “[a]fter a search of our records, this Office does not have any records in its possession, custody or control which would be responsive to your request.” Current Appeal In his appeal petition, Mr. Berxhiku alleges the Office’s response is deficient for the following reasons: [1] The MDAO has failed to conduct or disclose a meaningful, good-faith Search…

Meagan Horn, Esq. SPR25/1754 Page 3 June 30, 2025 [2] The response omits key information… [4] [sic] The denial is materially contradicted by confirmed responsive records in MSO custody… [5] No exemptions were cited under G.L. c. 4, § 7(26), nor was any effort made to explain redactions or segregate disclosable material. In a subsequent telephone conversation with this office on June 25, 2025, the Office confirmed that it possesses no records responsive to Mr. Berxhiku’s request. 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). 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 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 of Massachusetts. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku