Richard Duby v. Department of Criminal Justice Information Services (SPR 20222690)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 5, 2022 SPR22/2690 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.” Previous Appeal This request was the subject of a previous appeal. See SPR22/2395 Determination of the Supervisor of Records (November 4, 2022). In my November 4th determination, I ordered the Department to clarify its claim under Exemption (a) and G. L. c. 66, § 10B. Subsequently, the Department responded on November 21, 2022. Unsatisfied with the Department’s response, Mr. Duby further 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 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. SPR22/2690 Page 2 December 5, 2022 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 Department’s November 21st Response In its November 21, 2022 response, the Department “asserts that the serial number records [Mr. Duby] seek[s] are exempt from public disclosure pursuant to M.G.L. c. 4, § 7, cl. 26(a) M.G.L. c. and M.G.L. c. 66, §10B.” 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 November 21st response, as in its previous October 20th 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

Agapi Koulouris, Esq. SPR22/2690 Page 3 December 5, 2022 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. In its November 21st response, the Department argues the following for redacting firearms serial numbers under G. L. c. 66, § 10B: DCJIS has concluded 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. . . . Firearms serial numbers are unique numbers assigned to specific firearms by the manufacturer. When an individual purchases or transfers ownership of a firearm to another individual this information is recorded in the firearm transaction records maintained by DCJIS pursuant to M.G.L. c. 140. The serial number is associated with the ownership information for that firearm. DCJIS understands that a number on its own does not identify a person. However, when that number is matched up with other pieces of information that information can be used to ascertain the identity of the owner. For example, an individual could obtain access to a publicly available court file or police report from other data sources. The information in these records may contain the serial numbers for firearms associated with a crime. This information could then be correlated to the records released by DCJIS pursuant to this request to ascertain the identity of an individual. Based on the Department’s response, I find that the Department has not demonstrated how the firearm serial numbers constitute the type of information contemplated under G. L. c. 66, § 10B. Consequently, the Department has not met its burden to redact the serial numbers under Exemption (a) and G. L. c. 66, § 10B. 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.

Agapi Koulouris, Esq. SPR22/2690 Page 4 December 5, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Richard Duby