Douglas Moser v. Weston, Town of - Police Department (SPR 20171471)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 25, 2017 SPR17/1471 Chief Michael Goulding Town of Weston-Police Department 180 Boston Post Road Bypass Route 20 Weston, MA 02493 Dear Cqief Goulding: I have received the petition of Douglas Moser of NBC Boston appealing the response of the Town of Weston-Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on September 18, 2017, Mr. Moser requested the following categories of records: 1. "For every firearm the department has seized as part of a criminal investigation from Jan. 1, 2010, to the present, and placed into evidence or otherwise into the care, custody, or control of the WPD, please provide: a. WPD's incident report number b. The firearm serial number, make, model, caliber, and type, as available c. The item's property status (evidence, stolen, etc.), and · d. The crime or type [sic] investigation the firearm was involved in, if available. 2. Please provide a copy of the department's incident report for every lost or stolen firearm reported to WPD from Jan. 1, 2010, to the present. I understand that personally identifying information of reporting parties and witnesses (names, addresses, dates of birth, etc.) would be redacted according [sic] state law. Firearm serial numbers should not be redacted. 3. For every WPD-issued firearm lost, stolen, or otherwise unaccounted for from Jan. 1, 2010, to the present, please provide the final Internal Affairs investigation report." The Department provided a response dated September 29, 201 7, in which it provided portions of the responsive records but denied access to others pursuant to Exemptions (a), (c), (f) and (j) of the Public Records Law. G. L. c. 4, § 7(26)(a);(c);(f);(j). Unsatisfied with the Department's response, denying access to firearm serial numbers, Mr. Moser petitioned this office and this appeal, SPRl 7/1471, was opened as a result. 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

Chief Michael Goulding SPR17/1471 Page 2 October 25, 2017 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, § lOA(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 town 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, § lO(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, § 1 O(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 September 29th response 111 In its September 29 response, the Department indicated that it did not possess records responsive to Item 3 of Mr. Moser's request. The response explained that the Department withheld the serial numbers of firearms because based on the Department's careful review, its disclosure "in conjunction with the other information provided in response to the request regarding the nature of the criminal investigations, information regarding the firearms at issue and the nature of the investigations in this small community could disclose confidential information regarding the identity of individuals who possess firearms based on this specific data." The Department also indicated that "the cross-reference of this information, if accessed, could expose the confidential identities of all prior licensed owners that registered the weapon, thereby disclosing who was licensed to carry firearms in the Commonwealth. ... Based on the clear intent of these statutory privacy and confidentiality considerations, following a review by the Town's Police Chief, who serves as the Town's Firearms Licensing Authority ... the disclosure of this information would not be in the best interests of public safety, since it could disclose confidential information regarding the prior owners of firearms but could also identify the license holder(s) associated with such firearms." Further, the Department indicated that the reque~ted information may also be withheld pursuant to G. L. c. 41, § 97 as it operates through Exemption (a) of the Public Records Law. The Department indicated that this statute, "excludes from public records certain types of information, and requires such information to be maintained in a confidential manner. Without confirming or denying the existence of such information, any police records that might contain

Chief Michael Goulding SPR17/1471 Page 3 October 25, 2017 information explicitly protected by G. L. c. 41, § 97, cannot be disclosed, without the statutorily required authorization." Thus, the Department "has determined that it cannot disclose the requested serial numbers at this time since the disclosure of this information could identify a firearms license holder in violation of G. L. c. 66, § 1O B, as the information could, in turn identify the individual involved through the provision of this data." The Department also indicated that records responsive to Item 2, incident reports, were redacted pursuant to G. L. c. 66, § 1O B, as it operates through Exemption (a) and Exemption (f) of the Public Records Law. The Department indicated that because Exemption (f) has been held to allow investigative officials to provide an assurance of confidentiality to persons so that they will speak openly about matters under investigation, it has redacted names, addresses, and identifying details of voluntary witnesses or complainants. Exemption (a) In the Department's response, it indicated that it withheld the serial numbers pursuant to G. L. c. 66, § IOB; G. L. c. 140, §§ 121-131; and G. L. c. 41, § 97D, as they operate through Exemption (a) of the Public Records Law. 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 Attorney 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. The applicable statutes that the Department has stated apply to withhold the responsive firearm records state in pertinent parts:

Chief Michael Goulding SPR17/1471 Page 4 October 25, 2017 Confidentiality off irearm records The commissioner of the department of criminal justice information services, the department of criminal justice information services and its agents, servants, and attorneys including the keeper of the records of the firearms records bureau of said department, or any licensing authority, as defined in section 121 of chapter 140, shall not disclose any records divulging or tending to divulge the names and addresses ofp ersons who own or possess firearms, rifles, shotguns, machine guns and ammunition therefor, as defined in said section 121 of said chapter 140, and names and addresses ofp ersons licensed to carry or possess the same to any person, firm, corporation, entity or agency except criminal justice agencies as defined in section 167 of chapter 6 and except to the extent such information relates solely to the person making the request and is necessary to the official interests of the entity making the request. G. L. c. 66, § lOB (emphasis added). Confidentiality ofR ape and Attempted Assault Reports,· Penalties All reports of rape and sexual assault or attempts to commit such offences, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality G. L. c. 41, § 97D. Exemption (c) Exemption ( c) of the Public Records Law permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c). Exemption ( c) contains two distinct and independent clauses, each requiring separate analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). Only the second clause, which applies to requests for records that implicate privacy interests, is relevant to this appeal. Analysis under the second clause of Exemption ( c) is subjective in nature and requires a

Chief Michael Goulding SPRl 7/1471 Page 5 October 25, 2017 balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause 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 the second clause of 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 clause 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. Exemption (f) In its response, the Department indicated its intent to withhold portions of the responsive records pursuant to Exemption (f) of the Public Records Law. Exemption (f), the investigatory exemption, permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. C. 4, §7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v.

Chief Michael Goulding SPRl 7/1471 Page 6 October 25, 2017 Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at289-90. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to police in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Exemption (j) Exemption G) of the Public Records Law permits a records custodian to withhold or redact portions of records containing: the names and addresses of any persons contained in; or referred to in, any applications for any licenses to carry or possess firearms issued pursuant to chapter one hundred and forty or any firearms identification cards issued pursuant to said chapter one hundred and forty and the names and addresses on sales or transfers of any firearms, rifles, shotguns, or machine guns or ammunition therefor, as defined in said chapter one hundred and forty and the names and addresses on said licenses or cards G. L. c. 4, § 7 (26)(i) (emphasis added). Burden of specificity The Department has not provided enough specificity in its response to withhold serial numbers of firearms under Exemption (a) of the Public Records Law. Although the applicable statutes afford confidentiality to firearm records it is unclear how the statutes, as they operate through Exemption (a), permit the redactions made in the responsive records. As emphasized above, the statutes apply to names and addresses associated with applications for licenses to carry or possess firearms. Although the Department has indicated that its Police Chief serves as the Town's Firearms Licensing Authority, it is uncertain from the Department's response how information such as the serial number would divulge or tend to divulge the information

Chief Michael Goulding SPR17/1471 Page 7 October 25, 2017 contemplated by the statutes. It is also unclear which specific section of the licensure and sale of firearms statute, G. L. c. 140, § 121-131, allows the Department to withhold serial numbers of firearms. Likewise, as emphasized above, Exemption U) applies to names and addresses associated with applications for licenses to carry or possess firearms. It is not clear from the Department's response how information such as serial numbers of firearms would disclose the information contemplated by Exemption U). Further, I find the Department has not met its burden of providing enough detail in its response to withhold the serial numbers under the privacy clause of Exemption ( c ). Under the PETA decision, the Department has not demonstrated that the serial numbers of firearms are intimate details of a highly personal nature and that disclosure would result in personal embarrassment to an individual of normal sensibilities. Neither has it addressed the availability of such information from other sources. As such, I find the Department has not met its burden of specificity applying the exemption to the specific content it redacted from the responsive records. Conversely, I find the Department has met its burden to explain how the records were redacted to omit information that could reveal the identities of witnesses and/or victims. Therefore, I find the Department acted within its discretion in making such redactions to the responsive records under Exemption (f). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, whereas the Department has indicated that it will provide a supplemental response, I will consider this administrative appeal closed with the proviso that the Department provides said response in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Moser may appeal the substantive nature of the response within ninety calendar days. See 950 C.M.R. 32.08(1). Sincerely, ~ r r ~ Supervisor of Records cc: Douglas Moser