Steven Fitzgerald v. Everett, City of - Police Department (SPR 20201826)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 8, 2020 SPR20/1826 Captain Paul Hamilton City of Everett Police Department 45 Elm Street Everett, MA 02149 Dear Captain Hamilton: I have received the petition of Steven Fitzgerald appealing the response of the City of Everett Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Fitzgerald requested: “[a]ll applications for any licenses to carry or possess firearms issued pursuant to [G. L.] c. 140 or any firearms identification cards issued pursuant to [G. L.] c. 140 to [an identified person].” In your September 25, 2020 response, you informed Mr. Fitzgerald that his request is denied under Exemption (j) of the Public Records Law. Mr. Fitzgerald petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his September 28, 2020 petition, Mr. Fitzgerald asserts, “[t]he [Department] can redact certain items which are cited in their in their exemption like the address. Clearly, on its face the exemption does not permit the records custodian to withhold the firearm application or identification card in its entirely.” 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). 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) (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…”); 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 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

Captain Paul Hamilton SPR20/1826 Page 2 October 8, 2020 burden of establishing the applicability of an exemption). Exemption (j) Exemption (j) allows records custodians of firearm records to withhold: 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). Exemption (j) allows the identifying data, in particular the name and address of the licensee, to be deleted from the record prior to disclosure. The Department is unable to protect the anonymity of the licensee in this particular request because the requestor has already identified the particular licensee in his request to the Department. Therefore, the Department cannot provide the record even in redacted format, because the requestor would be able to identify the licensee due his request for a record specifically for the identified person. Accordingly, I find that the Department may withhold the entire record requested under Exemption (j) of the Public Records Law. Conclusion Accordingly, where the Department has met its burden in withholding the record in its entirety under Exemption (j) of the Public Records Law, I consider this request closed. If Mr. Fitzgerald is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Steven Fitzgerald