Colman Herman v. Newbury, Town of - Police Department (SPR 20202237)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 30, 2020 SPR20/2236; SPR20/2237 Detective Aaron Wojtkowski Newbury Police Department 25 High Road Newbury, MA 01951 Dear Detective Wojtkowski: I have received the petitions of Colman Herman appealing the response of the Newbury Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on October 27, 2020, Mr. Herman requested “. . . any and all communications with [an identified individual]. Communications include, but are not limited to, emails, letters, memoranda, faxes, and/or notes. . . .” Claiming to not yet have received a response, Mr. Herman petitioned this office and SPR20/2236 was opened. Subsequent to the opening of SPR20/2236, the Department provided a response on November 16, 2020, which included responsive records. Unsatisfied with the Department’s November 16th response, Mr. Herman appealed and SPR20/2237 was opened as a 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). 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. 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

Detective Aaron Wojtkowski SPR20/2236; SPR20/2237 Page 2 November 30, 2020 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. The Department’s November 16th response In its November 16, 2020 response, the Department claims that it redacted certain information from the responsive records and cites the language of Exemption (j). 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). 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, §§ 121-131P. The Department’s response did not contain the specificity required in a denial of access to public records. Instead, the Department’s response merely cites Exemption (j) without any further explanation as to the exemption’s applicability to the redacted information. Although the Department indicates that it redacted “. . . the following information . . .” and cites Exemption (j), it is unclear if the Department only redacted the names and addresses of an individual(s) from the responsive records. Consequently, I find the Department has not satisfied its burden in responding to this records request. As stated above, the custodian bears the burden to prove with specificity any exemption that applies. G. L. c. 66, §10 (b)(iv). Additionally, a custodian of a record shall not only cite an exemption but must explain with specificity why the exemption applies to a withheld or redacted portion of the responsive record in order to comply with the Public Records Law and its Regulations. G. L. c. 66, § 10(a).

Detective Aaron Wojtkowski SPR20/2236; SPR20/2237 Page 3 November 30, 2020 Conclusion Accordingly, the Department is ordered to provide Mr. Herman 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman