Natalia Abreu v. Brockton, City of - Police Department (SPR 20181035)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Szpewisor of Records July 25,2018 SPRl811035 Officer Michael Skinner City of Brockton - Police Department 7 Commercial Street Brockton, MA 02302 Dear Mr. Skinner: I have received the petition of Adam Sanders appealing the response of the Brockton Police Department (Department) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 4,201 8, Mr. Sanders requested "any and all records pertaining to case number 9900-708 1, including but not limited to reports, supplemental reports, written or recorded records, photographs/sketches, and all information regarding a record 9mm-. 380 Star B. Echeverria semi-automatic firearm serial number 1270559 (Brockton Police Evidence Receipt Number 7998)" The Department provided a response on July 6,2018, denying access to responsive records pursuant to Exemption ('j)o f the Public Records Law. G. L. c. 4, fj 7(26)(j). Unsatisfied with the Department's response, Mr. Sanders petitioned this office and this appeal, SPRl8/1035, was opened as a result. Petitions to tlze Supervisor of Records Mr. Sanders is reminded that when appealing to the Supervisor of Records, the requestor shall provide to the Supervisor complete copies of all correspondence associated with the petition, including: a complete copy of the letter by which the request was made, including in the case of electronic communications all header information indicating time, date, subject, sender and recipient email addresses . . ." 950 C.M.R. 32.08(1)(g). 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, 5 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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, 5 7(26). One Ashburton Place, Room 17 19, Boston, Massachusetts 021 08 (6 17) 727-2832. Fax: (6 17) 727-59 14 sec.state.ma.us/pre * pre@sec.state.ma.us

Officer Michael Skinner Page 2 July 25,2018 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 5 11 (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, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Tlte Department's July 6t'1r esponse In its July 6,20 18 response, the Department indicates that the records are exempt under Exemption (j). The Department explains that "Exemption (j) applies to all identifiable data such as names, addresses, report numbers and the like that could potentially identify a licensed firearms owner. As a result, such information must be withheld under the law." 0) Exemption The Department claims it withheld responsive records pursuant to Exemption (j) of the Public Records Law. Exemption (j) 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 anyfirearms 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, 5 7 (26)(j) (emphasis added). The purpose of Exemption (j) is to prevent individuals with devious motives from ascertaining the identities of those who possess firearms. The scope of the exemption is limited to restricting the public disclosure of the name and address of the individual. A records custodian should withhold an entire firearms record if the requester knows with certainty that this particular record pertains to a specific address or individual. In this instance, redaction is futile as it would not protect the identity of the license holder(s). See id.; see also G. L. c. 140, $5 121-13 1P.

Officer Michael Skinner Page 3 July 25,2018 Burden of specificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, 5 lO(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . ."); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 1. The Department did not identify any records, categories of records or portions of records that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, 5 10(b)(iv); 950 C.M.R. 32.06(3)(~)(4)T. herefore, the Department must identify the type of record(s) it has in its possession that it withheld. Further, Exemption (j) applies to names and addresses associated with applications for licenses to carry firearms. Based on the Department's response, it is unclear how the records a). cannot be redacted to prevent the disclosure of information protected under Exemption See Reinstein v. Police Cornrn'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, 5 10(a). I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Given that the Department did not meet its burden to explain how an exemption applies to withhold the records in their entirety, accordingly the Department is ordered to review the responsive records, redact where necessary and provide Mr. Sanders with requested records, provided 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. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Adam Sanders