THE COMMONWEALTH OF MASSACHUSETTS

OFFICE OF THE ATTORNEY GENERAL

ONE ASHBURTON PLACE
BOSTON, MASSACHUSETTS 02108
MAURA HEALEY
ATTORNEY GENERAL

TEL: (617) 727-2200

www.mass.gov/ago

September 28, 2016

VIA E-MAIL ONLY

David S. Reinhart
wa6ilt@amsat.org

Re:

Your Public Records Request and SPR 16/695

Dear Mr. Reinhart:

I write in supplemental response to your public records request, which this Office received on
July 26, 2016. You requested copies of records held by the Office of the Attorney General
(AGO), specifically u[a]ll records concerning the development and implementation of the
directive against 'copy' or 'duplicate' assault weapons issued by your office on July 19 [sic].
2016."
On August 18 we completed our response to your request by providing you with sixty-three (63)
pages of records in electronic format and one (1) CD that were responsive to your request and
subject to disclosure under the Public Records Law, G.L. c. 66, 10 and G.L. c. 4, 7, cl. 26.
We redacted some of the records we provided to you and cited the applicable exemptions. We
withheld other records pursuant to G.L. c. 4, 7, cl. 26(d), (f), and (n). I enclose the AGO letter
that accompanied the records for your reference.
The Supervisor of Records (Supervisor) informed me that you had appealed our response, and
forwarded me your August 26 e-mail, which states the bases for your appeal. According to your
e-mail, which I also enclose for your reference, the reasons for your appeal appear to be twofold:
1. You believe that the AGO improperly used the "deliberative process" exemption
because the "enforcement notice" has been issued; and
2. You believe that the AGO did not fulfill the request because you were not provided
with records you expected to receive concerning the development of the "directive,"
such as "drafts" or "a list of persons involved in the development."
The Supervisor subsequently suggested, and the AGO agreed, that additional explanation
concerning our response to your request would be helpful toward the resolution of your appeal.
After review of your request, our response, and your appeal, the AGO now revises and
supplements its August 18 response and addresses the issues you pose as follows.

David S. Reinhart
September 28, 2016
page 2

The AGO maintains that it properly invoked G.L. c. 4, 7, cl. 26(d), the "deliberative process"
exemption, to withhold certain records responsive to your request, as they are materials that
possess a deliberative or policymaking character and relate to an ongoing deliberative process.
By its nature an "Enforcement Notice" is part of an ongoing plan of investigation and
enforcement that does not resolve or terminate on the date that the enforcement-related
information is made public. The withheld records consist of drafts, redlines, legal memoranda
containing discussion of open legal issues, investigatory findings, expert and lay discussions and
recommendations, internal deliberations, and various forms of "candid" thinking relating to
"policy positions being developed." Each is relevant to the AGO's ongoing plan to investigate
and enforce the statutory Assault Weapons ban and not just to completion of an interim step the publication of the Enforcement Notice on July 20, 2016 ("Notice").
First, the objective of the Notice was, and continues to be, "to provide a framework to gun sellers
and others for understanding the definition of'Assault weapon' contained in G.L. c. 140, 121
.... In particular, this notice provides guidance on the identification of weapons that are 'copies'
or 'duplicates' of the enumerated Assault weapons that are banned under Massachusetts law
(emphasis added)."1 Even after July 20, the deliberative process surrounding the framework and
guidance in the Notice and the AGO's implementation/enforcement of the Notice will continue
and build upon the policies and legal conclusions contained and considered within the withheld
records.
Second, the fact that publication of the Notice was not intended to signal finality of the
deliberative process is clearly expressed in the last sentence of the Notice: "[t]he AGO reserves
the right to alter or amend this guidance." The AGO has, in fact, been periodically expanding on
the enforcement-related information available to the public based on ongoing deliberations, as
evidenced by the updates to the "Questions and Answers" section of our website.
Third, our policies concerning the Notice are inextricably linked to our ongoing investigations
into gun sales and gun safety, in general, and compliance with the statutory Assault Weapons
ban, in particular. If disclosed, the withheld records could reveal legal strategies and policies
that may impede current or future investigations, undermine defense of the statutory Assault
Weapons ban against current and/or threatened legal challenges, or prematurely disclose
strategies in current or planned civil or criminal enforcement actions.
Fourth, many of the records relate to the development of policy and planning for the prospect of
litigation challenging the Notice and the Assault Weapons ban.2 Should these deliberative
records be released, the AGO would be at a disadvantage, as they could provide premature
insight to private litigants and indicate how such litigation may be defended.

See AGO July 20, 2016 "Enforcement Notice, Prohibited Assault Weapons," paragraph 1.
Lawsuits against the AGO have been threatened in a number of media posts. As of today, one lawsuit
has been filed: https://wwvv.bostonglobe.coin/iTietro/2016/09/22/gunsuit/015FRF5oS020gvXdXoLI [Q/storv.litml.

David S. Reinhart
September 28, 2016
page 3

In summary, the records withheld under G.L. c. 4, 7, cl. 26(d) are not public records because
our deliberative processes regarding the Notice are ongoing and incomplete, tied to our open
investigations, and include legal opinions relevant to actual and threatened litigation.
In regard to the second basis for your appeal - that the AGO's response to your request was
incomplete - we note that a custodian's duty to comply with a request for records extends only to
those records which exist and are in his custody and there is no obligation to create a record in
response to a public records request. See G.L. c. 4, 7, cl. 26; G.L. c. 66, 10(a); 32 Op. Atty.
Gen. 157, 165 (May 18, 1977). We responded in good faith to your request for "all records"
concerning the directive, by providing you with some existing records, and withholding other
existing records, your list of what records you thought our response should include
notwithstanding.
Although your current appeal does not challenge the AGO's withholding of records under
exemption (f), or the withholding of records and redaction of information under exemption (n),
we are nevertheless providing you with additional information regarding those reasons for nondisclosure. We note that there is considerable overlap between the records withheld under
exemptions (f) and (n), i.e., a number of records fall within both those exemptions.
Under the "investigatory exemption," G.L. c. 4, 7, cl. 26(f), records that are "investigatory
materials," the release of which would "so prejudice the possibility of effective law
enforcement," may be withheld from disclosure in response to a public records request.
Investigatory materials include: records created, received, or gathered during the course of open
or ongoing investigations; records that display investigative techniques or sources; and records
about, interviews with, or statements from, individuals related to matters under investigation.
As we previously explained, the AGO is conducting ongoing investigations into gun sales, gun
safety, and compliance with the Assault Weapons ban. As part of those investigations, this
Office has collected, compiled, and reviewed records and information from various sources, and
continues to do so. The withheld records consist of: records and data regarding the sale and
ownership of firearms; records related to the manufacturing and design of certain weapons; notes
from investigatory interviews with dealers, law enforcement, researchers, and other public and
private sources; communications with victims of gun violence; and internal communications.
Each of these categories of records is relevant to the AGO's ongoing investigation and
enforcement of the statutory Assault Weapons ban. If disclosed, the withheld records would
prejudice current law enforcement efforts by prematurely releasing information about the nature
and course of our investigations, and by alerting targets to planned civil or criminal enforcement
actions.

Your original request stated: "These records should include working papers, drafts, minutes of
meetings, records of conversations in person or by telephone with other persons, e-mails between you,
your staff and other individuals."

David S. Reinhart
September 28, 2016
page 4

In addition, both current and future law enforcement efforts concerning any matter under
investigation, not just those related to the investigation and enforcement of the Assault Weapons
ban, would be seriously compromised by the disclosure of our confidential methods and sources
of information, including those private citizens who require assurances of confidentiality so that
they will speak openly about matters under investigation without fear (the "chilling effect").
In summary, the records withheld under G.L. c. 4, 7, cl. 26(f) are not public records because
our investigations regarding the Notice and the Assault Weapons ban are ongoing, and effective
law enforcement requires that we have the ability to keep our methods and sources of
information confidential.
The "public safety exemption," G.L. c. 4, 7, cl. 26(n), allows for the withholding of records
"relating to the security or safety of persons or buildings ... located within the commonwealth"
where disclosure, "in the reasonable judgment of the record custodian ... is likely to jeopardize
public safety."
Records withheld by the AGO under exemption (n) include; spreadsheets providing detail as to
gun sales transactions and gun registration information; and the names and statements
of/interviews with those persons or groups with whom we communicate concerning the Assault
Weapons ban, including victims of gun violence, and others who are assisting us in our
investigations. Additionally, the AGO applied exemption (n) to redact from those records that
were provided to you, the names and other information associated with AGO employees who
have worked and continue to work on this matter.
The above-referenced records all relate to the safety and security of people or buildings within
the Commonwealth and, in the judgment of this custodian, would jeopardize public safety if
disclosed. The data concerning gun sales transactions and gun registrations demonstrate where
firearms are located within Massachusetts, and, conversely, where they are not located. Both
types of information gleaned from these records would jeopardize the public's safety if it were
known, by those more criminally inclined, how many and what types of weapons were housed at
a certain location or in certain neighborhoods. Such information would also show the
weaknesses of those neighborhoods, businesses, or homes where no firearms are kept. Other
similar protections within the public records law, which existed before exemption (n) was added
to G.L. c. 4, 7, cl. 26, offer weight to the non-public nature of this type of information.4

See, e.g., the protections offered by exemption (j) of G.L. c. 4, 7, cl. 26 ("the names and addresses of
any persons contained in, or referred to in, any applications for any licenses to carry or possess firearms
... and the names and addresses on sales or transfers of any firearms, rifles, shotguns, or machine guns or
ammunition therefor ...") and G.L. c. 66, 10(d), by operation of G.L. c. 4, 7, cl. 26(a) (" ...the
department of criminal justice information services and its agents, servants, and attorneys including the
keeper of the records of the firearms records bureau ... or any licensing authority ...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 ... and names and addresses of persons licensed

David S. Reinhart
September 28, 2016
page 5

Likewise, disclosing the names and statements of/interviews with those persons or groups with
whom we communicate in the course of our investigations would not only put these people and
their families or associates at risk of retaliation by others who do not share their views, but also
jeopardize the general public's safety by instilling fear in anyone who would assist us in our
investigations, thereby impeding our ability to effectively enforce the law.
Finally, this Office has redacted and will continue to redact the names and other identifying
information5 of AGO employees who directly or indirectly worked on this matter from records
that are disclosed in response to any public records request. Various threats, including
anonymous threats of physical harm, have been made toward the Attorney General specifically,
and to her staff generally, by way of written communications, social media, and over the
telephone.6 Clearly, these threats concern the safety of persons and buildings within the
Commonwealth, and may additionally jeopardize the collective public's safety should action be
taken against the targeted individuals or the buildings in which they work.
In summary, the records withheld under G.L. c. 4, 7, cl. 26(n) are not public records because
their disclosure would pose a grave risk to the safety and security of individuals and buildings
within the Commonwealth, as well as jeopardize the general public's safety in the process.
In conclusion, the AGO stands by its position as stated within our August 18, 2016 response to
your request. Records that are responsive to your request and subject to disclosure have been
provided to you. Records that fall within one or more exemptions have been withheld or
redacted consistent with the Public Records Law.
Very truly yours.

Lorraine A.G. Tarrow

Assistant Attorney General
General Counsel's Office
enclosures
cc:

Shawn A. Williams, Supervisor of Records (w/enclosures)

to carry and/or possess the same to any person, firm, corporation, entity or agency except criminal justice
agencies ... and is necessary to the official interests of the entity making the request.").
5 Information that might help identify an individual employee was also redacted under G.L. c. 4, 7,
cl. 26(c).
5 See e.g., https://www.bostonglobe.com/metro/2016/07/30/faces-sexist-antigav-slurs-after-imposinggun-ban/5vz8YB5il8JdpnEGqDw7bN/storv.litml.