Colman Herman v. Newbury, Town of - Police Department (SPR 20210043)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 15, 2021 SPR20/2435; SPR21/0043 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. . . .” Previous appeals The requested records were the subject of previous appeals. See SPR20/2236 and SPR20/2237 Determination of the Supervisor of Records (November 30, 2020) and SPR20/2435 Determination of the Supervisor of Records (December 22, 2020). In my December 22nd determination, I indicated that in order to facilitate a determination as to the applicability of the Exemption (j) claim made by the Department to redact portions of the responsive record, the Department must provide this office with an un-redacted copy of the responsive record for in camera inspection. The Department provided the records and I would like to thank the Department for its cooperation. 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. 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 SPR20/2435 Page 2 January 15, 2021 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. In camera inspection In its December 8, 2020 response, the Department explained that the redacted record “. . . is an email between [the identified individual] and Deputy Chief . . . . Text contained in e-mail was redacted because disclosure of the such information would be in direct contradiction to exemption ‘J’ and would contain information related to a specifically named individual referred to in any application for any license to carry or possess firearms, and/or the names and addresses on sales or transfer of any firearms, rifles, shotguns, or machine guns or ammunition.” 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 requestor knows with certainty that this particular record pertains to a specific address or individual. In this instance, redaction would be futile as it would not protect the identity of the license holder(s). See id.; see also G. L. c. 140, §§ 121- 131P. While this in camera inspection was pending, on January 4, 2021, Mr. Herman stated: “[i]t has come to my attention that an email was omitted from the production. Please provide me with it.” On January 6, 2021, the Department provided a response denying access to the record

Detective Aaron Wojtkowski SPR20/2435 Page 3 January 15, 2021 pursuant to Exemption (j). Unsatisfied with the Department’s response, Mr. Herman petitioned this office and SPR21/0043 was opened. In the Department’s January 6, 2021 response, the Department indicated that “[t]he record you’ve requested will not be released due to exemption ‘J’ which precludes the release of information related to specifically named individual referred to in any application for any license to carry or possess firearms. Release of this email would be in direct contradiction to that. Pursuant to the recent order by the Supervisor of Public Records an unredacted copy was provided to Attorney Arthur for an in-camera review and the department is awaiting her decision.” Subsequently, the Department provided a supplemental response on January 14, 2021. In its January 14th response, the Department stated that in addition to its Exemption (j) claim, it would “. . . cite MGL c. 66 10[B] which states that the department shall not release records which divulge or tend to divulge home or email address and phone number; persons who own, possess or have license to carry firearms; government personnel. Mr. Herman’s request and any subsequent release of this record would be in direct contradiction and violation of c. 66 s. 10 because it would disclose such information.” 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. 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.

Detective Aaron Wojtkowski SPR20/2435 Page 4 January 15, 2021 The statute provides 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, or any licensing authority, as defined in section 121 of chapter 140, 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 interests of the entity making the request. G. L. c. 66, § 10B (emphasis added). Based on a correspondence submitted by Mr. Herman to the Department on October 27, 2020, it appears Mr. Herman has knowledge that this individual owns or possesses firearms. As such, I find the Department may permissibly withhold both emails from disclosure under G. L. c. 66, § 10B, as it operates through Exemption (a), because redaction in this instance would be futile. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Herman 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: Colman Herman