PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.
DEPARTMENT OF AGRICULTURAL RESOURCES & Another.
Heard: February 6, 2017.
action commenced in the Superior Court Department on October
case was heard by Christopher J. Muse, J.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Milton for the plaintiff.
Spector, Assistant Attorney General, for the defendants.
Rotolo & Jessie Rossman, for American Civil Liberties
Union of Massachusetts, amicus curiae, submitted a brief.
Jessica White, for Prisoners' Legal Services of
Massachusetts, amicus curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.
case concerns the scope of two exemptions from the statutory
definition of "public records." Specifically, it
probes whether information, such as names, addresses,
telephone numbers, and other information, contained on animal
health certificates in the custody of the Department of
Agricultural Resources, is subject to disclosure in response
to a public records request. A Superior Court judge
determined that such information is protected from disclosure
under statutory exemptions G. L. c. 4, § 7, Twenty-sixth
(n) and (c), implicating, respectively, public safety and
privacy. For the reasons that follow, we vacate that order
and remand for further proceedings consistent with this
Public records framework.
times relevant to this case, two statutes governed access to
public records: G. L. c. 66, § 10, and G. L. c. 4,
§ 7, Twenty-sixth. General Laws c. 66, § 10, sets
forth the conditions under which government entities, through
their records custodians, must provide access to public
records. "The primary purpose of G. L. c. 66, § 10,
is to give the public broad access to governmental
records." Worcester Tel. & Gazette Corp. v.
Chief of Police of Worcester, 436 Mass. 378, 382-383
term "public records, " in turn, is defined by G.
L. c. 4, § 7, Twenty-sixth. The definition sweeps in a
wide array of documents and data made or received by
employees, agencies, or other instrumentalities of the
Commonwealth. See Hull Mun. Lighting Plant v.
Massachusetts Mun. Wholesale Elec. Co., 414 Mass.
609, 614 (1993), citing G. L. c. 4, § 7, Twenty-sixth
(1990 ed.). This expansive definition of "public
records" is statutorily limited by twenty enumerated
exemptions in G. L. c. 4, § 7, Twenty-sixth (a.) - (u) .
these statutes, and our cases interpreting them, favor
disclosure of public records in two primary ways. First, G.
L. c. 66, § 10, imposes a presumption that the record
sought is public and places the burden on the records
custodian to "prove with specificity" that an
exemption applies. G. L. c. 66, § 10 (c) . To that end,
"a case-by-case review is required to determine whether
an exemption applies." Matter of a Subpoena Duces
Tecum, 445 Mass. 685, 688 (2006). Second, the statutory
exemptions in G. L. c. 4, § 7, Twenty-sixth, are to be
"strictly construed." Hull Mun. Lighting
Plant, 414 Mass. at 614.
statutory exemptions at issue in this case are found in
subsections (n) (exemption [n]) and (c) (exemption
[c] ) of G. L. c. 4, § 7, Twenty-sixth.
Exemption (n) concerns records related to public safety.
Specifically, it allows a records custodian to withhold an
otherwise public record if the record is sufficiently related
to the safety or security of persons or infrastructure, and
if disclosure of the record, in the "reasonable judgment
of the record custodian, " is "likely to jeopardize
public safety." G. L. c. 4, § 7, Twenty-sixth (n).
(c) concerns records related to privacy. It permits a records
custodian to withhold an otherwise public record if it is a
personnel or medical file, or if it relates to a specifically
named individual and its disclosure may constitute an
unwarranted invasion of personal privacy. G. L. c. 4, §
7, Twenty-sixth (c) .
two exemptions share a common characteristic in that they
both require consideration of the likely consequences of
releasing the record sought. Exemption (n), however, is
unique among the statutory public records exemptions in
including the "reasonable judgment of the record
custodian" as part of the calculation. See generally G.
L. c. 4, § 7, Twenty-sixth.
February, 2014, People for the Ethical Treatment of Animals,
Inc. (PETA), submitted two requests under G. L. c. 66, §
10, to the Department of Agricultural Resources (department).
The first sought access to "any and all permits,
licenses, health certificates, and other documentation
related to the export and/or import of nonhuman primates in
Massachusetts during 2013." The second sought access to
"all records referencing, reflecting, or relating to
alleged or claimed safety risks posed to animals (including
but not limited to nonhuman primates), people and buildings
involved with housing and transporting non-human
department responded in April, 2014. With respect to the
first request, the department provided copies of eleven pages
of interstate health certificates for nonhuman primates. The
department redacted from the certificates three categories of
information: (1) the names and addresses of consignors and
consignees, (2) United States Department of Agriculture
license or registration numbers, and (3) the names,
addresses, telephone numbers, and license numbers of all
veterinarians whose information appeared on the health
certificates. The department expressed its view
that disclosing such information "could compromise the
security of locations housing non-human primates, thus
increasing the risk to public safety of the animals as well
as the people and buildings involved with housing and
transporting the animals." As a result, the department
believed the information was exempt from the definition of
"public records" pursuant to exemption (n) .
department's response also referenced, and provided a
copy of, a 2013 memorandum from the United States Department
of Veterans Affairs (VA memorandum). In the VA memorandum,
the Freedom of Information Act (FOIA) Office of the Veterans
Health Administration advised its FOIA field officers
"not to release any personal information" about
"personnel engaged in any way in animal research in
response to requests for that information."
respect to PETA's second request, the department stated
that it did not have any records regarding alleged or claimed
safety risks posed to animals, people, or buildings involved
with the housing and transport of nonhuman primates.
appealed from the department's response to the supervisor
of public records, pursuant to G. L. c. 66, § 10 (b). In
June, 2014, the supervisor of public records resolved the
appeal in the department's favor, noting its reliance on
the VA memorandum and upholding its redactions. The
supervisor of public records stated that "[a]lthough the
FOIA exemptions cited in the [VA] memorandum are not
available to the [d]epartment as a means of responding to
[PETA's] request, the manner in which this information is
treated by the [F]ederal government is persuasive when
examining the [d]epartment's [e]xemption (n) claim.
October, 2014, PETA filed a complaint in the Superior Court
challenging the department's redactions and seeking
injunctive and declaratory relief, per G. L. c. 66, § 10
(b). In essence, the complaint alleged that the department
had failed to meet its burden of showing that the sole
exemption it relied on in making the redactions --exemption
(n) -- applied to the redacted information, and therefore