Richard Duby v. Department of Criminal Justice Information Services (SPR 20230903)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 18, 2023 SPR23/0903 Agapi Koulouris, Esq. General Counsel Department of Criminal Justice Information Services Legal Department 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) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 6, 2023, Mr. Duby requested records “…concerning retail firearms sales in Massachusetts for the period 01/01/23 – 03/31/23.” The Department responded on May 4, 2023. Unsatisfied with the Department’s response, Mr. Duby petitioned this office and this appeal, SPR23/0903, 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. 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. 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. SPR23/0903 Page 2 May 18, 2023 The Department’s May 4th response In its May 4, 2023 response, the Department stated that “…DCJIS publishes firearms transactions records on an annual basis. The 2023 firearms data will be published in early 2024.” The Department also provided a website link and stated, “[f]or the most recent firearms transaction data please see the DCJIS website ...” Current appeal In his appeal, Mr. Duby asserts, “... historically these records been provided within 10 business days of any request I have submitted. The tracking of the retail sale of firearms within the state of Massachusetts is conducted in an ongoing manner by the DCJIS. What counsel for the DCJIS is suggesting here is that the requested data is not available until calendar year 2023 has ended which can only be based on the improbable fact that the DCJIS is not collecting the data until the end of 2023. If that is the case I would like counsel for DCJIS to state that fact.” The Department’s response did not contain the specificity required in a denial of access to public records. The Department did not specify under what exemption of the Public Records Law it intends to withhold the requested record. As a result, I find that the Department did not satisfy its burden in responding to this records request. The Department must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). To the extent that the requested records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Department is ordered to provide Mr. Duby with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Duby may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Agapi Koulouris, Esq. SPR23/0903 Page 3 May 18, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Richard Duby