Mass. AG Healey doubles down on refusal to disclose details of gun law interpretation process
By Evan Lips | September 28, 2016, 17:46 EDT
BOSTON — Attorney General Maura Healey, recently directed by the state secretary’s office to provide a “revised response” to a records request related to her July “copycat” weapons enforcement notice, is doubling down on her earlier stance that the information should be kept out of the public eye.
In a letter obtained Wednesday, Assistant Attorney General Lorraine Tarrow defended the office’s decision not to release specific records to Holden resident David Reinhart, who in August filed a public records request he believed would tell him more about how Healey arrived at her decision.
“In summary, the records withheld under G.L. c. 4, § 7, cl. 26(d) are not public records because our deliberative processes regarding the (enforcement) notice are ongoing and incomplete, tied to our open investigations, and include legal opinions relevant to actual and threatened litigation,” Tarrow wrote in the office’s new response.
Following Healey’s July 20 directive in which she announced a ban on so-called “copycat” assault weapons, Reinhart requested in writing “all records concerning the development and implementation” of the enforcement notice, 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.”
Reinhart reached out to the New Boston Post after Healey’s office mailed him 63 pages of records he said had little or nothing to do with his request. Reinhart, in addition to receiving a transcript of Healey’s July 20 press conference, also received a video copy of the event.
In explaining her decision not to release certain materials to Reinhart, Tarrow cited several public records exemptions, including statutes dealing with the “deliberative process” exemption and a claim that releasing such records “relating to the security or safety of persons or buildings within the commonwealth, where public safety is likely to be jeopardized.”
Reinhart in his appeal argued that the deliberation process ended after Healey issued the order, meaning the exemption should no longer apply.
Tarrow, however, in her letter claimed that the deliberative process is still ongoing.
“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,” she wrote. “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.’
“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.”
Tarrow added that “even after July 30, 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.”
According to Tarrow, Healey’s July 20 issuance of the enforcement notice “was not intended to signal finality of the deliberative process.” Tarrow cited the last sentence of Healey’s notice as proof: “[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,” Tarrow noted.
Additional reasons Healey’s office offered to defend the decision included the claim that “the withheld records could reveal legal strategies and policies that may impede current and future investigations” or “prematurely disclose strategies in current or planned civil or criminal enforcement actions.
Tarrow also argued that releasing the “deliberative” records would put Healey at a disadvantage as “many of the records relate to the development of policy and planning for the prospect of litigation challenging the Notice and Assault Weapons an.”
The records, Tarrow claimed, “could provide premature insight to private litigants and indicate how such litigation may be defended.”
Tarrow did however describe the nature of the records Healey’s office elected to withhold from Reinhart, including, “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.”
Tarrow wrote that “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.”
Read the entire letter here: