Matthew Rocheleau v. Department of Criminal Justice Information Services (SPR 20192460)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

December 27, 2019 SPR19/2460

Agapi Koulouris, Esq.

General Counsel

Department of Criminal Justice Information Services 200 Arlington Street, Suite 2200

Chelsea, MA 02150

Dear Attorney Koulouris:

Ihave 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, § 10A; 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.

Previous appeal ©

The requested records were the subject of a previous appeal. See SPR19/2204

_ Determination of the Supervisor of Records (November 13, 2019). In my November 13" determination, I found that it was unclear what records DCJIS possessed and how the claimed Exemptions, (a) and (j), applied to withhold the responsive records from disclosure. Accordingly, I ordered DCJIS to provide Mr. Rocheleau with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, DCJIS responded on December 5, 2019, providing additional information regarding how the exemptions apply to withhold the responsive records. Unsatisfied with DCJIS’ response, Mr. Rocheleau petitioned this office and this appeal, SPR19/2460, was opened as result.

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 town 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

Agapi Koulouris, Esq. SPR19/2460 Page 2 December 27, 2019

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.

DCJIS’ December 5" response

In its December 5, 2019 response, DCJIS states that pursuant to G. L. c. 6, § 167A, it... provides for and exercises control of the public safety information system, including, but not limited to, the Criminal Justice Information System (CJIS) [and] maintains records in said public safety information systems relating to firearms licensing and transaction recording as provided in G.L. c. 140, §§122, 129B, 129C, 131 and 131F.” DCJIS indicates that the records it maintains regarding firearms licensing “. . . include the firearms license application data and license status ... records of sales, purchases and/or transfers of firearms.” DCJIS explains that “[o]n the licensing records, each record identifies the individual, application data and license type or status of the firearms license. Firearms sales, purchases and transfers of records also likewise identify the individual that purchased or transferred the firearm along with the identifying information for the firearm.” DCJIS states that “[r]ecords contained in the CJIS system may only be accessed by criminal justice agencies as provided in G.L. c.6, § 167A.” DCJIS asserts that the records are exempt pursuant to the following exemptions.

Exemption (a)

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. Lc. 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

Agapi Koulouris, Esq. SPR19/2460 Page 3 December 27, 2019

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.

Under Exemption (a), DCJIS states that “. .. G.L. c. 66, § 10B, applicable to records contained in CJIS and that identify individuals who own or possess firearms is clear in that it limits access to said records to criminal justice agencies,”

G. L. c. 66, § 10B 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.

G. L. c. 66, § 10B. 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. ¢. 4, § 7 (26)(j).

Agapi Koulouris, Esq. SPR19/2460 Page 4 December 27, 2019

Under Exemption (j), while citing the language of the statute, DCJIS asserts that “[t]he Supervisor of Public Records also clearly stated in the Guide to the Massachusetts Public Records Law January 2017, page 24, that a request for the firearms records of a specifically named individual should be withheld in its entirety as it is impossible for a records custodian to protect the identity of the subject of the request.” DCJIS posits that where Mr. Rocheleau has requested firearm license and transaction records relating to specifically identified individuals, “[t]here is no discretion provided in G.L. c. 66, § 10B or in exemption (j) to the public records law that would provide DCJIS with authority to disseminate these records pursuant to a public records request... [as]... there is no statutory exemption that allows for the access to, and dissemination of, firearms related records pertaining to deceased individuals.”

In his appeal petition, Mr. Rocheleau states the following, “[t]he language of Exemption (j) refers to a ‘person,’ which is reasonably and legally interpreted to mean a living person. As addressed in my previous appeal, the Guide to the Massachusetts Public Records Law (the ‘Guide’), provides further support for the interpretation of the word ‘person’ as including only living persons. The Guide states that the purpose of Exemption (j) is ‘to prevent individuals with devious motives from ascertaining the identities of those who possess firearms.’ There is no risk of ‘individuals with devious motives’ taking action against anyone who is no longer living... . Despite the note in the Guide cited by the Department related to requests for specifically named individuals, it remains true that there is no need to ‘protect the identity’ of the non-living persons, including those named in this case, for the reasons previously stated.” Further, with respect to M. G. L. c. 66, § 10B, Mr. Rocheleau states that because the individuals are deceased, “,, they do not and cannot ‘own or possess’ firearms ... nor can they currently be licensed to carry a firearm. Thus, a plain reading of the statutes show[] that these laws also do not apply, nor would the purpose of M.G. L. c. 66, § 10B be any better served than that of the Public Records Law, by withholding the records. M.G. L. c. 66, § 10B is intended to protect the safety of living individuals identified (including not only gun owners, but also government personnel) by ' protecting their addresses.”

Based on Mr. Rocheleau’s claims, I find DCJIS must provide a supplemental response explaining how Exemptions (a) and (j) permit it to withhold the firearm records of the deceased individuals.

Conclusion

Accordingly, 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 Regulations within ten (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.

Agapi Koulouris, Esq. SPR19/2460 Page 5 December 27, 2019

Sincerely,

Lalrecca Murnau,

Rebecca S. Murray Supervisor of Records

ce: Matthew Rocheleau