Sarah L. Ryley v. Pittsfield, City of - Police Department (SPR 20222767)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 15, 2022 SPR22/2767 Abigail Hunt Records Bureau Pittsfield Police Department 39 Allen Street Pittsfield, MA 01201 Dear Ms. Hunt: I have received the petition of Sarah Ryley, of the Boston Globe, appealing the response of the Pittsfield Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 6, 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. Previous Appeal This request was the subject of a previous appeal. See SPR22/2368 Determination of the Supervisor of Records (November 1, 2022). In my November 1st determination, I ordered the Department to explain whether it is able to provide segregable portions of the responsive records, and to identify any records it intends to withhold. Subsequently, the Department responded on November 18, 2022. Unsatisfied with the Department’s response, Ms. Ryley appealed, and this 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

Abigail Hunt SPR22/2767 Page 2 December 15, 2022 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 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 18th Response In its November 18, 2022 response, the Department cites Exemption (j) of the Public Records Law for withholding responsive records for parts 1, 2 and 5 of the request. See G. L. c. 4, § 7(26)(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 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

Abigail Hunt SPR22/2767 Page 3 December 15, 2022 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. In this case, the Department has not met its burden in responding to this request. Specifically, although portions of the responsive records may fall under Exemption (j), the Department has not explained how the records may be withheld in their entirety. In particular, the Department has not explained why it is unable to redact the names and addresses of the 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). Possession, Custody, or Control Please note 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). In its November 18th response, the Department states that “to obtain this information, [Ms. Ryley] can contact the Firearms Record Bureau,” referring to parts 3 and 4 of the request. Based on the Department’s response, it is unclear whether the Department possesses records responsive to these parts of the request. The Department must clarify this. Conclusion Accordingly, the Department 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