Below is our appeal to Secretary of State Galvin’s office regarding the lack of response to our FOIA request filed with Attorney General Healey.  Also of note, this story from the Boston Globe regarding Healey’s office and public records.

By U.S. Mail and

Email to pre@sec.state.ma.us

January 6, 2017

Supervisor of Records

Office of the Secretary of the Commonwealth

Public Records Division

McCormack Building

One Ashburton Place, Room 1719

Boston, MA 02108

 

ATTN:            Public Records Division

 

            RE:      Appeal of Denial of Access to Public Records

                        Requester:     Gun Owners’ Action League, Inc.

                        Noncompliant Authority:    Office of the Attorney General

for the Commonwealth

 

Dear sir or madam,

 

Please be advised that our office represents the Gun Owners’ Action League, Inc. (GOAL) of Northborough, MA, which (through our office) submitted a Public Records Request to the Office of the Attorney General for the Commonwealth (“AG”) on August 16, 2016 and renewed said request with a follow up letter on November 29, 2016. To date, we still have not received the public records requested, therefore we are now writing the Secretary of the Commonwealth to appeal the Attorney General’s denial of access to public records.

 

Background

 

  1. On August 16, 2016, our office, on GOAL’s behalf, wrote to the AG requesting certain public records related to Attorney General Healey’s July 20th, 2016 directive entitled “Enforcement Notice Prohibited Assault Weapons.” A copy of said letter is enclosed as Enclosure 1.

 

  1. On August 31, 2016, Lorraine A.G. Tarrow, Assistant Attorney General, wrote back to our office (by emailed letter attachment) acknowledging receipt of our public records request and stating that “we are in the process of searching for records that may be responsive to your request and subject to disclosure under the public records law….We will notify you as soon as possible of the progress of our search, and whether there is a cost associated with providing you with responsive records that are not otherwise exempt from disclosure.” A copy of said acknowledgment letter is enclosed as Enclosure 2.

 

  1. Having received no further response or records from the AG for over ninety (90) days since GOAL’s August 16th request, on November 29, 2016 our office sent a follow up request to the Attorney General’s Office. A copy of said follow up letter is enclosed as Enclosure 3.

 

  1. On December 2, 2016, our office received an email from AAG Tarrow acknowledging receipt of our follow up public records request letter. A copy of said second acknowledgement letter is enclosed as Enclosure 4.

 

  1. On December 19, 2016, our office received by email a purported partial response to GOAL’s Public Records Request consisting of a letter dated December 19, 2016 signed by Lorraine Tarrow AAG. The letter listed in numerical fashion and repeated the ten (10) separate parts of GOAL’s Public Records Request and then states in each of the Attorney General’s responses, except for Response No. 6[1], that “records that may be responsive to this part of your request are not subject to disclosure…” but are withheld based upon one or more “exemptions” under G.L. c. 4, 7, cl. 26. The exemptions cited include:

 

  1. The Deliberative Process Exemption
  2. The Investigatory Exemption
  3. The Public Safety Exemption

A copy of AAG Tarrow’s December 19, 2016 letter is enclosed as Enclosure 5.

 

The AAG’s letter of December 19, 2016 provided no further response, i.e. it provided none of the documents requested by GOAL in GOAL’s 10-point Public Records Request. On or about December 21, 2016, a CD arrived at the offices of Edward George & Associates (GOAL’s counsel) which, according to AAG Lorraine Tarrow’s letter of December 19th, contains:

 

“one thousand forty-eight (1048) pages of records that may be responsive to your request and are subject to disclosure under the public records law, G.L. c. 66, § 10 and G.L c. 4, § 7, cl. 26.”

 

A thorough review of all 1048 pages of material contained in the CD delivered to undersigned counsel by the AG contained absolutely no records which are in fact responsive to the ten (10) requests made on GOAL’s behalf on August 16, 2016. In fact, all 1048 pages of material provided by the AG contained nothing more than instruction, operating and safety brochures and manuals as are packaged with the firearms described therein, all of which are of semiautomatic type. A copy of the CD is attached hereto as Enclosure 6. The guns described in said materials are briefly itemized on Enclosure 7. None of the CD documents consist of anything other than instruction, operating and safety warnings produced by the individual gun manufacturers, and as to those materials, they are readily available as website downloads and/or enclosures as shipped with the subject guns.

 

GOAL’s Position

 

The ten (10) paragraphs of Public Records Requests submitted by GOAL, in summary, sought the following:

 

  1. Documents related to criminal use of firearms defined as “assault weapons” under the Federal Public Safety and Recreational Firearms Use Protection Act, 18 U.S.C. § 921(a)(30) as that Act appeared on September 13, 1994.
  2. Documents related to criminal use of firearms that are copies or duplicates of the Colt AR-15.
  3. Documents related to criminal use of firearms that are copies or duplicates of Norinco, Mitchell or Poly Technologies Avtomat Kalashnikovs.
  4. Documents related to criminal use of semiautomatic firearms that accept detachable magazines but did not have more than one of the following: a folding or telescoping stock, a pistol grip, a bayonet mount, a flash suppressor or threaded barrel, and a grenade launcher.
  5. Documents provided by specific organizations upon which the Attorney General relied when issuing her July 20, 2016 Notice of Enforcement.
  6. Documents provided by specific branches of the Massachusetts government upon which the Attorney General relied when issuing her July 20, 2016 Notice of Enforcement.
  7. Documents related to the Attorney General’s decision not to hold public hearings before issuing her Notice of Enforcement.
  8. Documents upon which the Attorney General relied when creating the list of firearms that are not “assault weapons” under Massachusetts law.
  9. Documents upon which the Attorney General relied when determining that a firearm is an “assault weapon” under Massachusetts law.
  10. Documents upon which the Attorney General relied or intends to rely when determining whether a firearm is a “copy or duplicate” of an enumerated “assault weapon.”

 

After reviewing the responses, objections, and documents provided, numerous documents that are responsive to my requests were not provided because the AG has both misconstrued GOAL’s requests and have taken an inappropriately broad view of any potential exemptions to the Public Records Law.

 

Specifically, the AG has refused to provide any records responsive to requests 1 through 5 and 7, stated that it has no documents responsive to request 6, and provided a partial compendium of records allegedly responsive to requests 8 through 10. Although the AG produced some documents in response to requests 8 through 10, those responses consist of nothing more than materials created by the firearms industry for their customers and AG makes it clear that there are other documents responsive to these requests that the AG has inappropriately refused to produce. As explained more fully below, none of the exemptions upon which the AG relies to withhold responsive documents support its position, and we are formally requesting an order directing the AG to respond to GOAL’s requests.

 

With respect to requests 1 through 4 and 7, the AG has asserted that the “deliberative process” exemption permits it to refuse to provide responsive documents. The deliberative process exemption does not apply, however, because the requests concern the Notice of Enforcement, which is a policy that has already been developed, and the deliberative process exemption applies only while a policy is in development. Babets v. Secretary of the Executive Office of Human Services, 403 Mass. 230, 237 n.8 (1988) (“By its terms, this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete. See Brant, Public Records, FIPA and CORI: How Massachusetts Balances Privacy and the Right to Know, 15 Suffolk U. L. Rev. 23, 31 (1981).”). The documents requested in requests 1 through 4 are those memorializing the number of crimes committed with certain “assault weapons,” as that term is defined in Massachusetts law, and that were reviewed by the AG prior to issuing the Notice of Enforcement. The documents requested in request 7 are those upon which the AG relied when making the decision not to hold a public hearing before issuing the Notice of Enforcement. The Notice of Enforcement, which is the subject of the requested documents, has been developed fully and was implemented as of July 20, 2016. It is, therefore, no longer “being developed,” and the documents upon which the AG relied in crafting the Notice of Enforcement cannot be withheld based on this exemption. The AG’s assertion that the Notice of Enforcement represents an “ongoing plan of investigation and enforcement” is without merit. There is nothing in the Notice of Enforcement that purports to identify it as anything but a final action, and, by its own terms, represents the official policy of the AG as communicated to the public. We are seeking only documents related to the promulgation of the Notice of Enforcement, to which we are entitled and which documents are not protected by the deliberative process privilege.

 

The AG also asserted the “investigatory exemption” as a basis to refuse to produce documents responsive to requests 1 through 5, as well as in response to requests 8 through 10. The “investigatory exemption” does not protect the documents we are seeking because, as the AG notes, this exemption is designed to prevent the “chilling” of individuals speaking to law enforcement, which is not an issue with these requests. See Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852 (1995). As explained above, the documents responsive to requests 1 through 4 have nothing to do with specific investigations and do not require the AG to divulge any information that could impact anyone’s cooperation with law enforcement. Even if they did, however, it would be proper to redact the information that should be withheld (such as names, addresses, etc.) while still producing the responsive documents. In request 5, we asked for all documents produced by specific public organizations and upon which the AG relied in crafting the Notice of Enforcement. There are no “private citizens who require assurances of confidentiality” involved in this request whatsoever. Even if there were, however, it would be appropriate only to redact the identifying information of those citizens, not to refuse to produce the documents entirely. With respect to requests 8 through 10, we are seeking documents related to how the AG determined that certain firearms were not “assault weapons” as set forth in the Notice of Enforcement. Producing these documents has no bearing on any active investigation, because they are not related to any particular investigation, or even behavior that is criminal. Finally, the AG’s assertion that there are ongoing investigations related to enforcing the terms of the Notice of Enforcement does not warrant withholding these documents because the Notice of Enforcement is not a perpetual investigation that gives the AG an excuse to refuse to produce documents related to the manner in which the official policies of the Commonwealth, as set forth in the Notice of Enforcement, were determined. If it were, the Public Records Law would be meaningless, because the AG is always enforcing the laws of the Commonwealth and would be able to refuse to produce any documents under the general-prosecution theory the AG now advances. If there are specific investigations that could be compromised by providing the material, redaction or an in-camera review would be appropriate whereas a refusal to provide any documents is not.

 

Finally, the AG has refused to produce documents responsive to requests 1 through 5 under the “public safety” exemption. Specifically, the AG refused to provide responsive documents because it is concerned with publicizing the locations at which firearms are stored and with the safety of those who provided the AG statements, allegedly because of potential retaliation by those with differing viewpoints. The AG’s response misstates GOAL’s requests so that it could rely on these purported safety concerns to refuse to provide documents that the AG is required to provide. The requests to which the AG responded with a “public safety” objection were all related to documents identifying criminal use of “assault weapons.” Simply put, this exemption does not apply because none of the problems the AG identified in her response are actually raised by GOAL’s requests. There was never a request for addresses where particular firearms are stored, for the names of individuals who own these firearms, or for the names of individuals who have cooperated with investigations. If such information is contained in responsive documents, it can be redacted.

 

Thank you for your assistance and please contact me if you require any further information.

 

Very truly yours,

 

 

Edward F. George, Jr.

 

Enclosures

cc:        Lorraine Tarrow, AAG

James Wallace, Exec. Dir., GOAL

[1] The Attorney General states in numbered paragraph 6 of its response letter that “The AGO has no records that are responsive to this part of your request.”

Click here for corresponding documentation

GOAL Appeals Empty FOIA Response
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