Sarah L. Ryley v. Springfield, City of - Police Department (SPR 20222569)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 28, 2022 SPR22/2569 Stephen G. Roche, Esq. Second Associate City Solicitor City of Springfield 36 Court Street, Room 210 Springfield, MA 01103 Dear Attorney Roche: I have received the petition of Sarah Ryley, of the Boston Globe, appealing the response of the City of Springfield (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 29, 2022, Ms. Ryley requested: [T]he following records pertaining to licensed firearms businesses (including individuals licensed as such), covering the time period of Jan. 1, 2017 through the date that [the] records are retrieved: [1] Applications for licenses to sell, rent, or lease firearms, rifles, shotguns, and machines guns; to perform gunsmithing services; or to sell ammunition; including any records during the course of the application process, such as correspondences and attachments. [2] Inspections, and any records provided to [the Department] as a result of inspections. [3] Referrals and complaints from any person or agency on potential violations of federal or state laws, and records of any action taken. [4] Investigations [5] Records of enforcement actions by [the Department], or any other agency that are in [the Department’s] possession. On October 12, 2022, Ms. Ryley narrowed the scope of her request, and following further correspondence, the City responded on September 29, 2022, denying the request. Unsatisfied with the City’s response, Ms. Ryley appealed, and this case was opened as a result. 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

Stephen G. Roche, Esq. SPR22/2569 Page 2 November 28, 2022 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 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 City’s October 20th Response In its October 20, 2022 response, the City cites Exemptions (a), (c), and (j) of the Public Records Law for denying part 1 of the request, and states that it has no records responsive to parts 2 through 5 of the request. See G. L. c. 4, § 7(26)(a), (c), (j). 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.”

Stephen G. Roche, Esq. SPR22/2569 Page 3 November 28, 2022 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. The City cites G. L. c. 66, § 10B, which provides in pertinent part: [A]ny 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. Additionally, G. L. c. 140, § 121 provides the following definition: “Licensing authority”, the chief of police or the board or officer having control of the police in a city or town, or persons authorized by them. G. L. c. 140, § 121. In its October 20th response, under Exemption (a), the City argues that “the applications [Ms. Ryley] requested (Massachusetts Firearm Dealer/Licenses to Sell Ammunition/Gunsmith License Applications) contain the name and address of a specific individual and therefore are exempt from disclosure and are being withheld.” Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391

Stephen G. Roche, Esq. SPR22/2569 Page 4 November 28, 2022 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. Under Exemption (c), the City argues the following: These applications contain sensitive information that would be an unwarranted invasion of personal privacy if they were to be released. The applications contain individual names, home addresses, occupation information, telephone numbers, license numbers, social security numbers, names of family members, Criminal Offender Record Information (CORI) information, and mental health history information. 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 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 such an 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.

Stephen G. Roche, Esq. SPR22/2569 Page 5 November 28, 2022 Under Exemption (j), the City argues that “Massachusetts Firearm Dealer/Licenses to Sell Ammunition/Gunsmith License Applications are issued to an individual on behalf of a dealer or gunsmith. ... [T]he City believes this information applies to Exemption (j) and thus are statutorily prohibited from disclosure.” Duty to Segregate; Identify the Records Although portions of the responsive records may fall under Exemptions (a), G. L. c. 66, § 10B, and under Exemptions (c) and (j), based on the City’s response, it is unclear how the records may be withheld in their entirety. Specifically, the City must explain whether it is able to redact the names and addresses of individuals so that segregable portions of the records can be provided. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Additionally, it is unclear from the City’s response which specific records the City intends to withhold. The City must identify the records, categories of records, or portions of records it intends to withhold under the Public Records Law. See G. L. c. 66, § 10(b)(iv) (a 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”). Possession, Custody, or Control Please be advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In its October 20th response, the City states that “the Springfield Police Department has indicated that they do not have any records in its possession regarding ‘inspections, referrals, complaints, investigations and enforcement actions.’ The Springfield Police Department would not have copies of records gathered and/or conducted by outside agencies.” Based on its response, it is unclear how the City would not have records responsive to parts 2 through 5 of Ms. Ryley’s request. Specifically, where the City appears to have issued multiple licenses, it is unclear how the City would not possess the types of records described in parts 2 through 5 of the request. It is further unclear whether the City is able to identify any agency that may be in possession of such records. See G. L. c. 66, § 10(b)(iii). The City must clarify these matters.

Stephen G. Roche, Esq. SPR22/2569 Page 6 November 28, 2022 Conclusion Accordingly, the City is ordered to provide Ms. Ryley with a response to her 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: Sarah Ryley