Altin Berxhiku v. Middlesex County Sheriff's Office (SPR 20252073)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 31, 2025 SPR25/2073 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. SPR25/2073 Page 2 July 31, 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. Previous Appeal This request was the subject of a previous appeal. See SPR25/1781 Determination of the Supervisor of Records (July 1, 2025). In my July 1st determination, I ordered the Office to clarify its claims to withhold responsive medical records under Exemption (a) and a responsive email chain under Exemption (b) of the Public Records Law. I also ordered the Office to clarify its claims to withhold a responsive custody transfer document under Exemptions (a) and (c) of the Public Records Law. The Office responded on July 16, 2025. Unsatisfied with the Office’s response, Mr. Berxhiku petitioned this office and this appeal, SPR25/2073, was opened as a result. While this appeal was pending, the Office provided a supplemental response on July 31, 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

Megan J. McLatchey, Esq. SPR25/2073 Page 3 July 31, 2025 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. 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 July 16th Response In its July 16, 2025 response, the Office confirmed that it possesses no records responsive to Items 1, 2, 4, 5 and 7 of the request. Regarding Items 3 and 6, the Office provided Mr. Berxhiku with a responsive email communication chain, but withheld a responsive “custody transfer document” pursuant to the Criminal Offender Record Information (CORI) Act as it operates through Exemption (a) of the Public Records Law. Regarding Items 6 and 8 of the request, the Office stated that it was continuing to withhold medical records pursuant to G. L. c. 111, § 70, the Health Insurance Portability and Accountability Act (HIPAA) and the CORI Act, as they operate through Exemption (a) of the Public Records Law. In addition, the Office stated: Given your repeated refusal to sign the previously provided CORI and HIPAA release forms, which would otherwise authorize the MSO to lawfully release the protected information, the MSO… invites you to appear in person and present a valid, government-issued photo identification… in order to verify your identity and physically retrieve the responsive records… The MSO encourages you to consider this option. Otherwise, the only remaining avenue for obtaining these records is through submission of the signed CORI and HIPAA release forms, as

Megan J. McLatchey, Esq. SPR25/2073 Page 4 July 31, 2025 the MSO is otherwise prohibited from releasing these documents under the Public Records Law. Please note however, that should you sign the CORI and HIPAA forms or elect to physically verify your identity and physically pick up copies of the requested records, then certain information within the custody transfer document will be redacted pursuant to M.G.L. c. 4, §7 (26)(c)… Current Appeal In his appeal petition, Mr. Berxhiku argues that Exemption (a) and the statutes cited by the Office are inapplicable to the responsive records, and that “in-person retrieval” is “not a compliance method.” In a supplemental response on July 31, 2025, the Office cited Exemption (c) of the Public Records Law to withhold the medical records responsive to Items 6 and 8 of the request. 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. Criminal Offender Record Information The current definition of CORI is as follows: “Criminal offender record information,” records and data in any communicable

Megan J. McLatchey, Esq. SPR25/2073 Page 5 July 31, 2025 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. Custody Transfer Document Under CORI, the Office stated: The custody transfer document is a record in a communicable form compiled by the Billerica Police Department – a Massachusetts criminal justice agency – which was then given to and maintained by the MSO – a Massachusetts criminal justice agency – as a part of the MSO’s safe keep transfer program. The MSO and the Billerica Police Department each qualify as Criminal Justice Agencies within the meaning of M.G.L. c. 6, § 167… [T]he custody transfer document concerns an identifiable individual… and relates to their arrest and incarceration for a criminal offense. To clarify, the custody transfer document qualifies as CORI protected information because the document contains information recorded in a criminal proceeding that was not dismissed before arraignment, including information relating to an identified individual’s arrest for a criminal offense, their subsequent transfer and incarceration to MJHOC, and intake information relating to their incarceration. To further clarify, the case was not dismissed before arraignment… [T]he underlying criminal case was dismissed on October 6, 2023. However, the MSO held the identified individual in its custody prior to that dismissal date. Given the nature of the arrest and the offense reflected in the responsive records, it is evident that the individual was arraigned prior to the case’s dismissal. Accordingly, the MSO is withholding the responsive custody transfer document

Megan J. McLatchey, Esq. SPR25/2073 Page 6 July 31, 2025 in its entirety pursuant to the protections afforded under the CORI statute, as the record pertains to an identified individual and a criminal proceeding that proceeded to arraignment, based on the information available to the MSO, and contains only information classified as protected CORI information. Based on the information provided in Office’s response, I find the Office has established how the custody transfer document falls within the definition of CORI. Specifically, the Office has explained that this record was recorded in a criminal proceeding that was not dismissed before arraignment. Consequently, where the responsive record is restricted from disclosure in its entirety by the Legislature under the CORI Act as it operates through Exemption (a) of the Public Records Law, I find that the Office has met its burden to withhold the responsive custody transfer document. 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). First Clause - Medical Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). 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). Medical Records Under Exemption (c), the Office stated: The requested records pertain to a specifically named individual and contain deeply personal and sensitive health related information…and includes a photo of the named individual for further visual identification. The requested records further detail the named individual’s medical history.... Additionally, the records provide the date of scheduled medical procedures and tests, the reason for such testing, and a description of provided treatment… Disclosure of the requested

Megan J. McLatchey, Esq. SPR25/2073 Page 7 July 31, 2025 records would be contrary to the public interest in preserving the confidentiality of a named individual’s medical information[.] Based on the Office’s response, where the records responsive to Items 6 and 8 of the request constitute medical information of a specifically identified individual, I find the Office has met its burden to withhold the responsive medical records in their entirety under Exemption (c) of the Public Records Law. Where the Office has met its burden to withhold the responsive medical records under Exemption (c), I decline to opine on the applicability of Exemption (a) of the Public Records Law to the responsive medical records. Conclusion Accordingly, 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