Altin Berxhiku v. Middlesex County Sheriff's Office (SPR 20252077)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 31, 2025 SPR25/2077 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 May 3, 2025, Mr. Berxhiku requested “… [his] blood pressure readings and any related medical documentation taken by your facility’s medical staff on July 24, 2023, at or about 2:00 AM, during [his] intake at the Middlesex House of Correction, for one overnight stay.” Previous Appeals This request was the subject of previous appeals. See SPR25/1405 Determination of the Supervisor of Records (June 3, 2025) and SPR25/1751 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 records under Exemption (a) 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, SPR25/2077, was opened as a result. While this appeal was pending, the Office provided a supplemental responses 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). 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. SPR25/2077 Page 2 July 31, 2025 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. 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 cited the Criminal Offender Record Information (CORI) Act, G. L. c. 111, § 70, and the Health Insurance Portability and Accountability Act (HIPAA), as they operate through Exemption (a) of the Public Records Law, to withhold the responsive records. 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 the MSO is otherwise prohibited from releasing these documents under the Public Records Law.

Megan J. McLatchey, Esq. SPR25/2077 Page 3 July 31, 2025 Current Appeal In his appeal petition, Mr. Berxhiku argues that “in-person retrieval is… not compliance… every claimed exemption fails… [and] identity verification [has] already [been] resolved.” In a supplemental response on July 31, 2025, the Office cited Exemption (c) of the Public Records Law to withhold the responsive records. 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). 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 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 responsive records constitute medical information of a specifically identified individual, I find the Office has met its burden to withhold the responsive records in their entirety under Exemption (c) of the Public Records Law.

Megan J. McLatchey, Esq. SPR25/2077 Page 4 July 31, 2025 Where the Office has met its burden to withhold the responsive records under Exemption (c), I decline to opine on the applicability of Exemption (a) of the Public Records Law to the requested 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