Altin Berxhiku v. Department of Children and Families (SPR 20251894)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 15, 2025 SPR25/1894 Steven Treat, Esq. Records Access Officer Assistant General Counsel Department of Children and Families 1 Ashburton Place, 3rd Floor Boston, MA 02108 Dear Attorney Treat: I have received the petition of Altin Berxhiku appealing the response of the Department of Children and Families (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 1, 2025, Mr. Berxhiku requested the following: [1] “Photos of Bumps and Bruises” . . . - All photographs, case notes, emails, and evidence related to these “bruises,” - Metadata indicating when and how they were obtained, - The names of all officials who reviewed, referenced, or handled said photos. . . . [2] “Video Shown to Police” . . . - The alleged video in full; - All records, emails, logs, or memos that reference the existence of this video; - The names and contact information of the police officials who allegedly viewed it. . . . [3] “Sealed Police Report” . . . - All communications between you, the DCF office, and law enforcement officials regarding that report, - Written authorization or legal basis justifying your access to and use of sealed records. . . . [4] Call Logs Between [two named individuals] 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

Steven Treat, Esq. SPR25/1894 Page 2 July 15, 2025 . . . - All DCF phone records showing any attempted or completed calls by [a named individual] to [another individual], - Any emails, internal memos, or logs documenting such contact, - Any call recordings, voicemails, or transcripts. Previous Appeal This request was the subject of a previous appeal. See SPR25/1375 Determination of the Supervisor of Records (May 29, 2025). In my May 29th determination, I found that it was unclear whether the requested records were at issue in pending litigation, and I ordered the Department to clarify its claims under Exemption (a) for withholding responsive records. See G. L. c. 4, § 7(26)(a). Subsequently, the Department responded on June 27, 2025. Unsatisfied with the Department’s response, Mr. Berxhiku petitioned this office, and this appeal, SPR25/1894, was opened as a result. Subsequent to the opening of this appeal, the Department provided a further response to Mr. Berxhiku and this office on July 2, 2025. 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 Department’s June 27th and July 2nd Responses In its June 27, 2025 response, the Department identifies “case files and reports prepared under sections G.L. c. 119, §§ 51A to 51E pertaining to named individuals” that are “potentially responsive” to Mr. Berxhiku’s requests. The Department cites G. L. c. 119, §§ 51E and 51F along with G. L. c. 112, §§ 135-135B, as they operate through Exemption (a) of the Public Records Law, along with Exemption (c) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(a), (c).

Steven Treat, Esq. SPR25/1894 Page 3 July 15, 2025 In its July 2, 2025 response, the Department indicates that the records are the subject of pending litigation, and explains that “Mr. Berxhiku is in active litigation with the Department of Children Families. The case is out of Middlesex Superior Court and the docket number is 2581CV01090.” 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. This office has reviewed the trial court’s docket and verified that the civil litigation, relating to the records that are the subject of Mr. Berxhiku’s request, is active and ongoing in the Massachusetts Superior Court. See Altin Berxhiku v. Department of Children and Families, et al. (Middlesex Superior Court Docket No. 2581-CV-01090). In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). Please note 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