Massachusetts AG refuses to disclose details of gun law interpretation process
By Evan Lips | August 26, 2016, 16:41 EST
BOSTON — A month after Attorney General Maura Healey caught gun owners by surprise with a new interpretation of state firearms laws, citing the prevalence of what she described as illegal “copycat” assault weapons, questions remain as to how she arrived at the decision and whether Gov. Baker knew of the plan in advance.
Holden resident David Reinhart wanted to know more, so he filed a Freedom of Information Act request with Healey’s office, asking for documents he believed would show how Healey came to her conclusion.
Reinhart’s request was straightforward — he asked in writing for “all records concerning the development and implementation of the directive,” including “working papers, drafts, minutes of meetings, records of conversations in person or by telephone with other persons, emails between you, your staff and other individuals.”
A few weeks later Healey’s office sent Reinhart 63 pages of records — none of which pertained to his request.
The stack of documents included a transcript of Healey’s July 20 announcement, redacted emails exchanged between staffers and inquiring gun owners and dealers following the announcement, several letters from state lawmakers penned after the directive was set in motion and a printout of the updated “question-and-answer” section posted to the state’s website.
Reinhart, who later reached out to the NewBostonPost, also received in the mail a video copy of Healey delivering her directive.
“The main thing that jumps out at me is that there is basically nothing here about how it was developed: no drafts, no records of consultations, phone calls, etc.,” Reinhart said during a subsequent conversation conducted via email. “I find it hard to believe that the document (directive) sprung fully-formed into the mind of the AG overnight.”
Healey has said she directed her staff to examine the issue after an Islamic State-sympathizing Florida man shot up a gay nightclub in Orlando in June, killing 49 and wounding 53 with a SIG Sauer MCX semi-automatic rifle and a 9mm Glock 17 semi-automatic pistol.
“After Orlando I was asked by many members of the media, ‘could this weapon be purchased here in Massachusetts?’” Healey said earlier this month during an appearance on Boston Public Radio. “So I asked the team to look into it.
“What we found is that even though we had a ban on the sale of these weapons, copycat versions of these weapons were being sold in the state.”
Healey said her staff discovered that “10,000 of these military-style assault weapons were sold in Massachusetts alone” and claimed the transactions were a direct violation of the 1998 state law barring that class of firearms.
As for Reinhart’s Freedom of Information Act application, Healey’s office claimed that certain areas of his request fell outside of the scope of public records laws.
“To the extent that the AGO possesses additional records responsive to this request, they would fall within one or more of the following exemptions from the definition of public records under (state law),” wrote Assistant Attorney General Lorraine A.G. Tarrow.
Specifically, Healey’s office claimed it could not share with Reinhart “materials that possess a deliberative or policy-making character and relate to an ongoing deliberative process” and “investigatory materials or techniques necessarily compiled out of the public view, the disclosure of which would so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.”
Tarrow also cited “records relating to the security or safety of persons or buildings within the commonwealth, where public safety is likely to be jeopardized.”
A review of the state public records statute indicates the reason for withholding such information may not be as cut-and-dry as Healey’s office claims. The statute does list several exemptions, including “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency,” but notes that “this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based.”
The “deliberative process” exemption, according to the latest public records guide released by Secretary of State William Galvin’s office, moreover “provides a limited executive privilege for policy development.”
“The exemption is intended to avoid release of materials that could taint the deliberative process if prematurely disclosed,” the guide states. “Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process.
“Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making. Only portions of records that possess a deliberative or policy-making character and relate to an ongoing deliberative process are exempt from mandatory disclosure.”
Reinhart argued that since the deliberative process is finished — and Healey’s office has already issued the order — the exemption should no longer apply. During an interview this week with Commonwealth Magazine, Healey said her directive has already reduced sales of “copycat” assault rifles “down to none.”
Healey also said her office will not be prosecuting anyone involved in the estimated 2,200-count of weapons transactions that occurred on the day she announced her directive.
“We are going to pursue those transactions that were made and occurred after our enforcement notice went out there,” Healey specified.
Reinhart said he will challenge Healey’s FOIA ruling.
“By hiding behind the ‘deliberative process’ exemptions of the public records law, she is preventing the citizens of the commonwealth from understanding how her decision was made,” Reinhart said Friday. “If this change had been done as a change of statute there would have been hearings, testimony and recorded votes.
“Here we have nothing.”
Read the response and documents supplied by Healey’s office: