Richard Duby v. Department of Criminal Justice Information Services (SPR 20222395)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 4, 2022 SPR22/2395 Agapi Koulouris, Esq. General Counsel Massachusetts Department of Criminal Justice Information Services 200 Arlington Street, Suite 2200 Chelsea, MA 02150 Dear Attorney Koulouris: I have received the petition of Richard Duby appealing the response of the Department of Criminal Justice Information Services (Department/DCJIS) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 27, 2022, Mr. Duby requested “data for retail firearms sales year to date to the end of September.” The Department responded, providing a spreadsheet with the serial numbers redacted. In a response on October 20, 2022, the Department indicates that it redacted the responsive records pursuant to G. L. c. 66, § 10B. Unsatisfied with the Department’s response, Mr. Duby appealed and this case 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 agency or municipality 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. Att’y 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 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. SPR22/2395 Page 2 November 4, 2022 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 October 20th Response In its October 20, 2022 response, the Department cites G. L. c. 66, § 10B for withholding responsive records. 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 Att’y 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. In its response, the Department cites G. L. c. 66, § 10B, which provides in pertinent 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

Agapi Koulouris, Esq. SPR22/2395 Page 3 November 4, 2022 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. In its October 20th response, the Department argues the following under G. L. c. 66, § 10B: [The Department] understand[s] that [Mr. Duby is] seeking access to the firearms serial number pursuant to the public records request [he] submitted to [the Department]. Please be advised, the DCJIS asserts that the firearms serial number is exempt from public disclosure pursuant to M.G.L. c. 66, § 10B as these records tend to divulge the identify of firearms license holders in violation of said statute. . . . Upon review, DCJIS has concluded that, in regard to [Mr. Duby’s] most recent public records request, that the disclosure of this additional field of information tends to identify firearms license holders when used in conjunction with other publicly published data sets. In this case, the Department has not met its burden to redact the serial numbers under Exemption (a) and G. L. c. 66, § 10B. Specifically, where the statute is limited to “the names and addresses of persons who own or possess firearms,” it is unclear how the Department may withhold serial numbers under this statute, or how serial numbers would divulge or tend to divulge the names and addresses. The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Mr. Duby with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Richard Duby