Matthew Rocheleau v. Department of Criminal Justice Information Services (SPR 20192204)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 13, 2019 SPR19/2204 Agapi Koulouris, Esq. General Counsel Department of Criminal Justice Information Services 200 Arlington Street, Suite 2200 Chelsea, MA 02150 Dear Attorney Koulouris: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Department of Criminal Justice Information Services (DCJIS) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rocheleau requested "[a]ny/all firearms licenses(s); application(s) for license(s); and/or records of firearms sales, purchases and/or other transactions" for identified individuals. DCJIS responded on October 25, 2019 by denying access to records under Exemptions (a) and G) of the Public Records Law. G. L. c. 4, § 7(26)(a), G); G. L. c. 66, § 1O B. 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. Exemption (a) Exemption (a) permits the withholding ofrecords that are: 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

Agapi Koulouris, Esq. SPR19/2204 Page 2 November 13, 2019 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. 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. G. L. c. 66, § 1O B states in relevant part: 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. .. shall not disclose any records divulging or tending to divulge the names and addresses of persons 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 of persons 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 interest of the entity making the request. You assert that "[u]nder this statute, DCJIS is specifically prohibited from providing the firearms records you have requested." Exemption (j) Exemption (j) of the Public Records Law permits a records custodian to withhold or

Agapi Koulouris, Esq. SPR19/2204 Page 3 November 13, 2019 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)U). The scope of the exemption is limited to restricting the public disclosure of the name and address of the individual. Appeal In its October 25th response DCJIS provides the above wording of Exemption U) and G. L. c. 66, § lOB and indicates "[a]ccordingly, the records you seek are exempt from public disclosure pursuant to M.G.L c. 4, § 7 clauses 26(a) and U) and M.G.L. c. 66, § lOB." In his appeal petition Mr. Rocheleau objects to this response and asserts "[] these Exemptions do not apply because both of the individuals included in the request have died, and under Massachusetts law, privacy rights do not survive death." He further notes "[a]dditionally, the purpose of Exemption (j) -that is, according to the Gui.de to the Massachusetts Public Records Law published by the Secretary of the Commonwealth 'to prevent individuals with devious motives from asce1iaining the identities of those who possess firearms' - is no longer served by withholding the [r]ecords because of the deaths of the individuals to whom the records relate." With respect to G. L. c. 66, § lOB Mr. Rocheleau contends "[t]he dead cannot and do not 'own or possess' physical property, nor can they be 'licensed' to engage in any act." Based on its October 25th response, I find it is unclear which responsive records DCJIS possesses. Further, although G. L. c. 66, § 1O B and Exemption U) allow for the withholding of information related to individuals who possess firearms, it is unclear how these exemptions apply to these responsive records. See G. L. c. 66, § 1O (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 ... "). DCJIS must address these issues. Conclusion Accordingly, the DCJIS is ordered to provide Mr. Rocheleau with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its

Agapi Koulouris, Esq. SPR19/2204 Page4 November 13, 2019 Regulations within 10 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau