State records official backs Dennis police, who redacted names in report of incident

BOSTON — The identity of a retired state trooper whose gun went off in a Dennis restaurant last year will remain hidden, according to a recent ruling by Massachusetts Supervisor of Public Records Rebecca Murray.

The man’s name, along with the names of the friends he was having lunch with when his firearm was accidentally fired into a booth at Jason’s Tavern, had been redacted from the Dennis police report about the incident.

On March 16, 2018, the retired trooper and his friends were in the booth near the back of the Patriot Square restaurant when the conversation turned to guns and gun safety courses, according to the report.

The former trooper had just purchased a new handgun and the group was interested in seeing it. He took out the 9 mm Sig Sauer P938, ejected the magazine and the chambered round, and locked the slide back to make sure it was safe, the report says. The safety was also on, the man later told police.

The gun was handed to one of his friends and later returned to its owner under the table, in an attempt to be discreet. The trooper loaded and seated the magazine, and when the slide came forward a single round was fired into the bench.

After the Times appealed the redaction of the names in the police report provided by the Dennis Police Department, the department argued it could black out the former trooper’s name under an exemption in Public Records Law that allows agencies to withhold the names and addresses of any person “contained in, or referred to in, any applications for any licenses to carry or possess firearms.”

The purpose of the exemption is to prevent people “with devious motives” from finding out the identities of people who possess firearms, according to Murray’s determination.

In a March 20 finding, Murray, who oversees the state’s public records, agreed with the department’s reasoning in redacting the former trooper’s name based on the license to carry exemption, but found its argument related to redacting witness names lacked specificity, including information about whether the witnesses were voluntary. After the department asked for her to reconsider that portion of the decision and provided additional information, she decided in an April 19 finding that all the names in the report could be kept from the public.

Because of the allowed redactions, and the fact the case went to a private court hearing, with apparently no formal charges filed, the trooper’s name will remain undisclosed despite the seriousness of the incident — highlighted by his own reaction to it as portrayed in the police report.

“It was clear he was shaken up (due) to the gravity of the situation,” according to the report. “He was genuinely concerned with the well-being of those present and also with what could have happened.”

Following the incident, the Cape and Islands District Attorney’s Office found there was sufficient evidence to apply for a criminal complaint, and a clerk magistrate hearing was held to determine if he would be charged with discharging a firearm within 500 feet of a building.

Clerk magistrate hearings are private hearings where the clerk magistrate determines if charges should be brought against a person before they are arraigned.

Proponents for the hearings say they can keep smaller matters, like underage possession of alcohol, from clogging up courtrooms, although investigations by the Boston Globe found that more serious allegations as well as accusations against high-profile individuals are also the subject of the hearings.

If the clerk magistrate decides there is enough probable cause, charges can be filed and a public arraignment can take place. The clerk magistrate can also determine that there is not enough probable cause or even tell the accused that if they stay out of trouble for a certain period of time, no charges will be filed. If a hearing does not result in charges, records of the hearing are not available to the public.

The Times checked all arraignments for the charge of discharging a firearm within 500 feet of a building on the Cape since the shooting. None of the police reports matched the incident at Jason’s Tavern.

In the Times’ appeal to Murray, the newspaper argued that the intention of the license-to-carry exemption was to prevent firearm licensing authorities from releasing lists of people who possess firearms, and that under the police department’s interpretation, it may withhold the name of a person with a license to carry from any public document, including routinely released material such as payroll and property records.

But because the Times was requesting a police report related to a firearm used by a person with a license to carry, Murray found in her March 20 determination that the police may withhold the trooper’s name.

That finding is overly broad, according to Jeffrey Pyle, a lawyer who has represented the Times in the past and whose firm, Prince Lobel Tye, helped the Times draft its appeal in this case.

“The exemptions are supposed to be read narrowly,” Pyle said.

Under the police department and Murray’s interpretation of the exemption related to firearms licenses, the name of a person who has a license to carry and fatally shot someone could be redacted from police reports, Pyle said.

“That’s an absurdly broad reading of the exemption,” he said.

Police redacted the names of the friends the trooper had lunch with under an exemption that is meant to allow witnesses confidentiality so they will speak openly about matters.

"Any details in witness statements which if released create a grave risk of directly or indirectly identifying a private citizen who volunteers as a witnesses are indefinitely exempt,” the department wrote.

In her original response to the Times appeal, Murray wrote that it was unclear whether the witnesses in the report were voluntary, if the redacted portions had voluntary witnesses in them, or how redacted portions of the report would pose a “grave risk of directly or indirectly identifying” the witnesses.

The department didn’t provide a sufficient explanation for the exemption, she wrote.

“The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested records,” according to Murray.

The police department requested Murray reconsider the appeal, and she later ruled the redactions were allowable under state public records law.

The witnesses waited for investigators and spoke freely with them, police wrote.

Police listed three concerns if the names of the witnesses were ordered to be released.

“It may prevent witnesses from waiting for the police or speaking with officers in future interactions, incidents, or investigations,” police wrote.

It could also jeopardize their safety and open them up to harassment from “those who have extreme views toward the witnesses, what the witnesses discussed with police, or what the public may have heard or read about the incident,” police wrote.

The final reason was the witnesses could be targeted by people with “extreme views or opinions regarding the type of conduct in this specific incident and have been known in the past to exercise behavior that leads to threats or intimidation of a witness.”

— Follow Ethan Genter on Twitter: @EthanGenterCCT.