People for the Ethical Treatment of Animals, Inc. v. Dep't of Agric. Res.

• Decision Date: 06 February 2017
• Docket Number: SJC-12207
• Citation: 477 Mass. 280,76 N.E.3d 227
• Parties: PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. v. DEPARTMENT OF AGRICULTURAL RESOURCES & another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

477 Mass. 280

76 N.E.3d 227

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.

v.DEPARTMENT OF AGRICULTURAL RESOURCES & another.¹

SJC-12207

Supreme Judicial Court of Massachusetts, Suffolk..

February 6, 2017.

June 14, 2017.

David Milton for the plaintiff.

Amy Spector , Assistant Attorney General, for the defendants.

Laura Rótolo & 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.

LENK, J.

This 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 opinion.²

Background . 1. Public records framework . At all 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.³ 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, 764 N.E.2d 847 (2002).

The 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, 609 N.E.2d 460 (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 ).

Together, 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, 840 N.E.2d 470 (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, 609 N.E.2d 460.

The two 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 ).

Exemption (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 ).

These 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.

2. Facts . In 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 primates."

The 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.⁴ 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 ).

The 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."

With 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.

PETA 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."

3. Procedural history . In 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 that the department's refusal to provide unredacted copies of the health certificates violated G. L. c. 66, § 10.

After answering the complaint, the department filed an emergency motion for a protective order to stay discovery. The department argued that discovery was unnecessary because it had relied on only three documents in determining that exemption (n ) applied: (1) the VA memorandum, discussed supra ; (2) a 2013 decision of the supervisor of public records applying exemption (n ) to an earlier, similar public records request from PETA; and (3) a 2013 memorandum from the department's legal division explaining its view that exemption (n ), as well as the privacy exemption under FOIA, 5 U.S.C. § 552(b)(6) (2012), authorized the withholding of much, but not all, of the information redacted from PETA's 2014 request.⁵ PETA opposed the motion, arguing primarily that exemption (n ) requires a fact-intensive inquiry that justified its discovery requests. After a hearing, the Superior Court judge deferred ruling on the motion in order to allow the department to file a "comprehensive statement in support of its reasons" for claiming that exemption (n ) applied, as well as an anticipated dispositive motion.

The department then filed a memorandum in support of its motion. In it, the department argued that it properly relied on exemption (n ) in redacting the information described above. It also argued, for the first time, that exemption (c ) authorized the redaction of names, addresses, and telephone numbers pertaining to individuals (as opposed to facilities), which also appeared on the health certificates. PETA argued in opposition that neither exemption applied. Both sides attached numerous exhibits to their memoranda.

After another hearing, the judge ruled largely in the department's favor. He determined that because exemption (n ) includes such "deferential language" as "reasonable judgment" and "likely to jeopardize public safety," it required the court to give "a heightened level of deference to the keeper and supervisor of public records." Thus, based on the VA memorandum and other documents submitted by the department, the judge concluded that the department had demonstrated with sufficient specificity that, in the department's reasonable judgment, release of information on the health certificates pertaining to "persons and facilities located...