Ethan Genter v. Dennis, Town of - Police Department (SPR 20190514)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 20, 2019 SPR19/0514 Lt. John Brady Town of Dennis -Police Department 90 Bob Crowell Road South Dennis, MA 02660 Dear Lt. Brady: I have received the petition of Ethan Genter appealing the response of the Town of Dennis -Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Genter requested a copy of a police report related to an incident involving the discharge of a firearm. The Department responded to his request by providing a redacted report and claiming the redacted portions are exempt from disclosure pursuant to Exemptions (f) and G) of the Public Records Law. G. L. c. 4, § 7(26)(±), 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, § IOA( 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, § 1O (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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Lt. John Brady SPR19/0514 Page 2 March 20, 2019 Exemption (I) Exemption (f) 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, 3 71 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. 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. at 289-90. Exemption (f) is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas, 371 Mass. at 62. Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein, 378 Mass. at 290 n.18. 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 Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Id. at 438. In the Department's response dated March 12, 2019, the Department indicates that redactions to the report were made "under Exemption F of the Massachusetts Public Records Law. 'Confidentiality: information may be withheld to provide an assurance of confidentiality to private citizens so that they will speak openly about matters under investigation. Accordingly, any details in witness statements which if released create a grave risk of directly or indirectly identifying a private citizen who volunteers as a witness are indefinitely exempt."' Despite the Department's response, it remains unclear whether the witnesses in the report were voluntary, whether the redacted portions contain the identities of voluntary witnesses or

Lt. John Brady SPR19/0514 Page 3 March 20, 2019 how the information contained in the redacted portions would "create a grave risk of directly or indirectly identifying" those voluntary witnesses. See id. The Department's response did not contain the specificity required in a denial of access to public records or portions thereof. Instead, the Department's response cites Exemption (f) without a sufficient explanation as to the exemption's applicability to the redacted portions of the report. The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find that the Department has not satisfied its burden in claiming this exemption. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. Exemption (j) 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 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)(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 may 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, §§ 121-13 lP. In its March lih response, the Department indicates that "[r]edactions are also being made under Exemption J. 'Firearm information PROHIBITED: Chapter 66 § 10 the names and addresses of those who have applied for L TC and FID licenses shall not be released, including the names and addresses of those who possess firearms."' Whereas, Mr. Genter is requesting a police report related to firearm use by a particular firearms license holder, I find the Department may properly withhold the license holder's name and address found within the responsive report pursuant to Exemption (j) of the Public Records Law. The release of such information would thwart the purpose of Exemption (j) by allowing the public to ascertain the identity of an individual who possesses a firearm. See also G. L. c. 66, § 1O B (prohibiting "any licensing authority as defined in section 121 of chapter 140" from

Lt. John Brady SPR19/0514 Page4 March 20, 2019 disclosing "any records divulging or tending to divulge the names and addresses of persons who own or possess firearms"); G. L. c. 140, § 131 ( defining "licensing authority" as "the chief of police or the board or officer having control of the police in a city or town, or persons authorized by them"). Conclusion Given that the Department has not met its burden to explain how Exemption (f) applies to the requested records, the relevant redacted portions may not be withheld. Accordingly, the Department is ordered to review the records, redact where necessary, and provide Mr. Genter with another response, 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, ~~ Supervisor of Records cc: Ethan Genter