Altin Berxhiku v. Middlesex County Sheriff's Office (SPR 20251781)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 1, 2025 SPR25/1781 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/MSO) 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 (emails, internal messages, memos, texts) between the Middlesex Sheriff’s Office (MSO) and the Middlesex District Attorney’s Office (MDAO) between July 22 and July 26, 2023, that reference: - My name… - My illegal intake or any issues surrounding medical care, legal status, or handling at the Middlesex House of Correction - Any coordination or direction regarding how I was to be processed or treated[.] [2] [sic] [3] All communications between MSO and BPD that reference or document my illegal transfer from BPD to MSO custody, including all intake alerts, transfer forms, agency correspondence, or incident-related logs. [4] Any records reflecting that your office was made aware that I was denied access to legal counsel during my illegal detention by BPD, including any notes, logs, or communications that refer to the fact that I explicitly asked for an attorney and was denied. [5] Any communications, logs, or documents that indicate whether your office was aware that BPD failed to notify my country of origin, in violation of 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. SPR25/1781 Page 2 July 1, 2025 international consular notification protocols that apply to foreign-born U.S. citizens during detention. [6] All transport records reflecting my illegal transfer from BPD to the Middlesex House of Correction, including transport vehicle logs, custody transfer documents, medical check-in notes, or other relevant paperwork. [7] All records, communications, or internal notes reflecting the denial or delay of doctor-prescribed blood pressure medication during intake, including any awareness or discussion of my documented vital signs and the decision to delay or withhold treatment. [8] All records or incident reports documenting that I repeatedly made your staff aware of a serious medical episode — a blood pressure spike — at or about 11:00 PM, but was not seen by medical personnel until 2:30 AM. I demand all logbooks, camera logs (if available), written staff notations, incident reports, nursing records, shift notes, and any internal communications reflecting this unconscionable delay and neglect. The Office responded on June 17, 2025. Unsatisfied with the Office’s response, Mr. Berxhiku petitioned this office and this appeal, SPR25/1781, 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.

Megan J. McLatchey, Esq. SPR25/1781 Page 3 July 1, 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 status of the responsive records. It is unclear if Mr. Berxhiku may have a greater right of access to the responsive records outside the Public Records Law. The parties are encouraged to communicate to determine if there is another means affording Mr. Berxhiku a greater right of access to the responsive records. The Office’s June 17th Response In its June 17, 2025 response, the Office stated that it possessed no records responsive to Items 1, 4, 5 and 7 of the request. The Office further stated that Item 2 of the request was blank. Regarding Items 6 and 8 of the request, the Office stated that it was withholding medical records pursuant to G. L. c. 111, § 70, the Health Insurance Portability and Accountability Act (HIPAA) and the Criminal Offender Record Information (CORI) Act, as they operate through Exemption (a) of the Public Records Law. Regarding Items 3 and 6 of the request, the Office withheld a responsive “custody transfer document” under the CORI Act as it operates through Exemption (a), as well as Exemption (c) of the Public Records Law. In support of withholding “the email chain delivering the custody transfer document to the MSO from the Billerica Police Department,” the Office cited Exemption (b) of the Public Records Law. In addition, the Office informed Mr. Berxhiku that “… should [he] wish to still obtain the requested records, the MSO requires a signed CORI and HIPAA release authorization form in order to release any of these protected documents to [him][.]” Current Appeal In his appeal petition, Mr. Berxhiku objects to signing the release authorization forms and argues the Office’s response is deficient for the following reasons: [1] MSO’s response [is] unlawful, evasive, and misleading… [2] The case is sealed – [the Office] is illegally accessing and attempting to disseminate sealed records… [3] The “Inmate” form is offensive, defamatory, and legally baseless… [4] Legal failures and improper exemptions…

Megan J. McLatchey, Esq. SPR25/1781 Page 4 July 1, 2025 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.” 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. Records of Hospitals or Clinics G. L. c. 111, § 70 provides in pertinent part: Hospitals or clinics subject to licensure by the department of public health or supported in whole or in part by the commonwealth, shall keep records of the treatment of the cases under their care including the medical history and nurses’ notes and, in the case of a patient brought to a hospital by an ambulance service licensed pursuant to chapter 111C, a copy of the call summary set forth in paragraph (15) of subsection (b) of section 3 of said chapter 111C. ... Such records shall be in the custody of the hospital or clinic. Section ten of chapter sixty-six shall not apply to such records[.] G. L. c. 111, § 70. Health Insurance Portability and Accountability Act (HIPAA) HIPAA sets forth rules and regulations for the use and disclosure of protected information by covered entities. The applicable regulation is part of the implementation of

Megan J. McLatchey, Esq. SPR25/1781 Page 5 July 1, 2025 HIPAA, and provides the following definitions: Definitions … Covered entity means: … (3) A health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter. … Individually identifiable health information is information that is a subset of health information, including demographic information collected from an individual, and: (1) Is created or received by a health care provider, health plan, employer, or health care clearinghouse; and (2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and (i) That identifies the individual; or (ii) With respect to which there is a reasonable basis to believe the information can be used to identify the individual … Protected health information means individually identifiable health information: (1) Except as provided in paragraph (2) of this definition, that is: (i) Transmitted by electronic media; (ii) Maintained in electronic media; or (iii) Transmitted or maintained in any other form or medium. (2) Protected health information excludes individually identifiable health information: (i) In education records covered by the Family Educational Rights and Privacy Act, as amended, 20 U.S.C. 1232g; (ii) In records described at 20 U.S.C. 1232g(a)(4)(B)(iv); (iii) In employment records held by a covered entity in its role as employer; and (iv) Regarding a person who has been deceased for more than 50 years. 45 C.F.R. § 160.103. Additionally, the applicable regulations implementing HIPAA provide for the following concerning de-identification of protected health information: (a) Standard: De-identification of protected health information. Health information that does not identify an individual and with respect to which there is

Megan J. McLatchey, Esq. SPR25/1781 Page 6 July 1, 2025 no reasonable basis to believe that the information can be used to identify an individual is not individually identifiable health information. (b) Implementation specifications: Requirements for de-identification of protected health information. A covered entity may determine that health information is not individually identifiable health information only if: … (2)(i) The following identifiers of the individual or of relatives, employers, or household members of the individual, are removed: (A) Names; … (R) Any other unique identifying number, characteristic, or code … 45 C.F.R. § 164.514. Criminal Offender Record Information The current definition of CORI is as follows: “Criminal offender record information,” records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167.

Megan J. McLatchey, Esq. SPR25/1781 Page 7 July 1, 2025 Exemption (b) Exemption (b) permits the withholding of records that are: related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis.

Megan J. McLatchey, Esq. SPR25/1781 Page 8 July 1, 2025 Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306,308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires a balancing test, which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. Medical Records Under G. L. c. 111, § 70 and HIPAA, the Office states: The requested records, specifically the medical records responsive to [Items] 6 and 8, were created by MSO nursing staff, who are licensed healthcare providers within the meaning of the statu[t]es. These requested records reflect protected medical information including the patient’s medical history, health conditions, and clinical assessments and procedures that were performed while they were in MSO custody. In accordance with state and federal statutes, the MSO withholds the requested records to safeguard the patient’s right to privacy and to avoid unlawful disclosure. Without valid legal authorization or verified identity from the individual to whom the records pertain, disclosure would subject the MSO to potential penalties and liability. Based on the Office’s response, it is unclear how the responsive medical records may be withheld under G. L. c. 111, § 70. Specifically, the Office has not established whether it is a “hospital or clinic subject to licensure by the department of public health or supported in whole or in part by the commonwealth,” as required by the statute. The Office must clarify this matter.

Megan J. McLatchey, Esq. SPR25/1781 Page 9 July 1, 2025 It is also unclear how HIPAA, specifically or by necessary implication, permits the Office to withhold the responsive medical records. In this case, the Office has not established how the responsive medical records constitute protected health information as contemplated by HIPAA and its associated regulations. The Office has also not demonstrated whether it is a covered entity within the meaning of the statute. Specifically, it is unclear whether the Office is “a health care provider who transmits any health information in electronic form in connection with a transaction covered by [the statute].” The Office must clarify these matters. Under CORI, the Office states: … CORI laws exempt … the medical records and the custody transfer document … [They] are informational records compiled by the MSO, a criminal justice agency, and pertain to an identifiable individual’s transfer into MSO custody and subsequent MSO intake into its facility. These records were created at the time of the individual’s intake and include documentation of the individual’s medical history while in MSO custody. They contain personally identifiable information, including the individual’s date of birth, the circumstances and basis for their arrest, items in their possession at the time of arrest, and details concerning their admission into MSO custody. Additionally, the records track key custodial events such as court appearances, release date and time, as well as medical evaluations and procedures conducted during the individual’s time in MSO custody. Based on the Office’s response, I find that the Office has not demonstrated how the responsive records fall within the definition of CORI. Specifically, it is not clear how the records constitute “information recorded in criminal proceedings that are not dismissed before arraignment.” See G. L. c. 6, § 167. Consequently, the Office has not met its burden to withhold the responsive records under the CORI Act as it operates through Exemption (a) of the Public Records Law. See G. L. c. 66, § 10(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Email Chain Under Exemption (b), the Office states: … [T]he email chain delivering the custody transfer document to the MSO from the Billerica Police Department, is exempt from disclosure pursuant to M.G.L. c. 4, §7(26)(b)….The requested communication records, contain information regarding how MSO officers carry out their duties and how the MSO coordinates with other government agencies to facilitate an individual’s transfer from one agency’s custody to the MSO’s custody. The requested records detail the MSO’s internal procedure to accept someone into the MSO’s custody as a transfer from an arresting government agency including information such as timing, transport arrangements, identity confirmation, and MSO intake instructions. Further, the

Megan J. McLatchey, Esq. SPR25/1781 Page 10 July 1, 2025 requested records reflect inter-agency communications where disclosure would reveal purely administrative or operational procedures that do not bear on public oversight or accountability; rather public disclosure of the requested records would undermine the MSO’s ability to properly perform its necessary government function to provide safe and secure transfer of individuals into MSO custody. Based on the Office’s response, I find that the Office has not demonstrated that the responsive records relate solely to the internal personnel rules and practices of the government unit. Additionally, the Office has not explained whether such record is predominantly used internally, nor explained how disclosure of the records would significantly risk circumvention of the Office’s regulations and statutes. It should also be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G.L. c. 66, § 10(a). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). As a result, I find that the Office has not met its burden to withhold the identified email records in their entirety under Exemption (b) of the Public Records Law. Custody Transfer Document Under CORI, the Office states: …CORI laws exempt… the medical records and the custody transfer document… [They] are informational records compiled by the MSO, a criminal justice agency, and pertain to an identifiable individual’s transfer into MSO custody and subsequent MSO intake into its facility. These records were created at the time of the individual’s intake and include documentation of the individual’s medical history while in MSO custody. They contain personally identifiable information, including the individual’s date of birth, the circumstances and basis for their arrest, items in their possession at the time of arrest, and details concerning their admission into MSO custody. Additionally, the records track key custodial events such as court appearances, release date and time, as well as medical evaluations and procedures conducted during the individual's time in MSO custody. With regard to the responsive custody transfer document, I find the Office has not demonstrated how the responsive record falls within the definition of CORI. Specifically, it is not clear how the custody transfer document constitutes “information recorded in criminal proceedings that are not dismissed before arraignment.” See G. L. c. 6, § 167. As a result, the Office has not met its burden to withhold the responsive custody transfer document under the CORI Act as it operates through Exemption (a) of the Public Records Law. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Under Exemption (c), the Office stated:

Megan J. McLatchey, Esq. SPR25/1781 Page 11 July 1, 2025 … [T]he custody transfer document responsive to your request 3 and 6, is exempt from disclosure pursuant to M.G.L. c. 4, §7 (26)(c)….Information within the custody transfer document falls squarely into the second category of the exemption as it is other materials and date relating to a specifically named individual - the individual arrested and the victim of the alleged arresting offense - the disclosure of which may constitute an unwarranted invasion of personal privacy if publicly disclosed. The disclosure of this information as a public record would 1) result in personal embarrassment to an individual of normal sensibilities as the records detail when an individual was arrested and charged with an offense; (2) contain intimate details of a highly personal nature such as the name of the victim of the arresting offense, whether there is an active restraining order or ICE Detainer against the individual who was arrested and medical information relating to the arrested individual; and (3) the information is not available from other sources… To the extent that the responsive record contains the medical information of a specifically identified individual, I find that the Office may properly withhold such portions under Exemption (c). However, the Office has not shown that the responsive record, in its entirety, constitutes intimate details of highly personal nature, nor that disclosure thereof would result in personal embarrassment to an individual of normal sensibilities. Further, it is unclear how the record cannot be redacted so that segregable portions can be provided. See Reinstein, 378 Mass. at 289- 90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Office must clarify these matters. 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 (10) 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 (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku