Commonwealth of Massachusetts County of Suffolk The Superior Court CIVIL RE: People forthe Ethical Treatment of Animals Inc Dept of Agricultural Resources at al TO: Drew Glassroth, Esquire, Esquire Law Offices of Howard Friedman 90 Canal St, 5th Fl Boston, MA 02114 NOTICE OF DOCKET ENTRY You are hereby notified that on 10/14/2014 the following entry was made on the above referenced docket: Complaint Dated at Boston, Massachusetts this 9th day of September, 2015. Michael Joseph Donovan, Clerk of the Courts BY: Margaret M. Buckley Assistant Clerk Telephone: 617-788-8144 Disabled individuals who need handicap accommodations should contact the Administrative Office Of the Superior Court at (617) 788-8130 4580387inidoc01 ceasrodn Commonwealth of Massachusetts County of Suffolk The Superior Court RE: People for the Ethical Treatment of Animals Inc Dept of Agricultural Resources at al TO: David Milton, Esquire Howard Friedman PC Law Offices 90 Canal Street 5th Floor Boston, MA 02114-2022 NOTICE OF DOCKET ENTRY You are hereby notified that on 10/14/2014 the following entry was made on the above referenced docket: Complaint Dated at Boston, Massachusetts this 9th day of September, 2015. Michael Joseph Donovan, Clerk of the Courts BY: Margaret M. Buckley Assistant Clerk Telephone: 617-788-8144 Disabled individuals who need handicap accommodations should contact the Administrative Office Of the Superior Court at (617) 788-81 30 4580387 inidoc01 ceasrodn - . . 7 \ata A the COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2014-03217 PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. VS. DEPARTMENT OF AGRICULTURAL RESOURCES another1 MEMORANDUM OF DECISION AND ORDER ON THE MOTION FOR JUDGMENT AS A MATTER OF LAW The People for the Ethical Treatment of Animals, Inc. or the ?plaintiff filed the underlying action pursuant to the Massachusetts Public Records Lawcompel disclosure of public records held by the Massachusetts Department Of Agricultural Resources (the ?Department?). PETA seeks a court order requiring the Department to produce .unredacted copies of public records pertaining to the tranSport of non?human primates into and out of Massachusetts in 2013'. The Department protrided PETA with redacted certi?cates of veterinary health inspections for non-human primates, with the redactions removing all information in the documents regarding the individuals, companies, and public research facilities to and from Whom the animals were sent, and the veterinarians who inspected them. The Department stated that the redacted information was exempt from the Public Records Law under G. L. c. 4, 7, cl. 26(n), the public safety exemption. MAW. cent. \4 MA be?? duc- mud?HM - 1 Gregory C. Watson, Commissioner of the Department of Agricultural Resources Presently before the court is the Department?s Memorandum in Support of Judgment as a Matter of Law. For the following reasons, the Department? 5 memorandum is ALLOWED in part, and DENIED in part. I BACKGROUND On February 21, 2014, PETA submitted two public records requests to the Department pursuant to G. L. c. 66, 10. The first request sought records relating to the export and import of non?human primates in Massachusetts occurring in 2013. The second request sought ?all records referencing, re?ecting or relating to alleged or claimed safety risks posed to animals (including but not limited to nOn-human primates), people and buildings involved with housing and transporting of non-human primates.? In a letter dated April 23, 2014, the Department responded to both requests. In response to the first request, the Department provided eleven pages of interstate veterinary health inspection certi?cates, with all identifying information about the owners, sellers, and recipients of the primates, and the veterinarians who inspected them, redacted. The Department further responded that it had no additional records regarding non?human primates (in response to the ?rst request) and no documents relating to ?alleged or claimed safety risks posed to animals, people, and buildings involved With the housing and transporting of non-human primates?_ (in response to the second request). The redactions to the health certi?cates were the result of the review of Michael Cahill, the director of the Division of Animal Health for the Department, who determined that disclosure of the unredacted information would present a public safety risk, and thus the redacted portions would invoke the protections of thepublic safety exemption of G. L. c. 4, 7, cl. 26(n). In making its determination, the Department relied on three documents: (1) a memorandum by the United States Department of Veterans Affairs Freedom of Information Act Of?ce, dated January 30, 2013 (the 3 memorandum?); (2) a prior decision by the Supervisor of Public Records, dated May 30, 2013, which applied the public safety exemption to a similar public records request by and (3) a memorandum prepared by the Department?s legal division, dated March 19, 2013. The VHA memorandum instructed VHA FOIA of?cers not to disclose ?personal information about VHA personnel engaged in any way in animal research in response to requests for that information.? The VHA memorandum stated that ?[n]ews media continues to report on homes and, laboratories of scientists. engaged in animal research being vandalized as well as personal attacks of animal researchers and their families by animal rights activists. These reports cause concern for the safety and well-being for all involved in animal research.? The VHA memorandum described ?foreseeable harm in the release of personal information on individuals involved in animal research is the inability to adequately protect these individuals when there [are] known attacks against those involved in animal research.? It ?irther directed the withholding of. identities, including names, laboratory room numbers, and personal addresses for individuals involved in research, and, in order to prevent against: unlawful trespass onto property, directed public records keepers ?to ensure that floor plans, room numbers, laboratory descriptions, or research activities cannot be ascertained and personnel cannot be identified.? PETA sought review of the Department?s response to the ?rst records request by ?ling a petition for review with the Supervisor of Public Records, Shawn A. Williams (?Williams?), pursuant to G. L. c. 66, 10(b). Williams upheld the Department?s position that the public safety exemption applied, ?nding that ?the withheld portions of the records consist of information that is . ?related to the security orsafety of persons or buildings? and the disclosure of such information ?is 3? likely to jeopardize public safety. 4 On October 14, 2014, PETA filed the present actionpursuant to G. L. c. 66, .10, where it requested that the court enter a declaratory judgment pursuant to G. L. c. 231A, 1 that neither the public safety exemption, G. L. c. 4, 7, cl. 26(n), nor any other public records exemption, applies to these records. After the Department answered complaint, and in response to initial set of discovery requests, the Department filed an emergency motion seeking a protective order staying all discovery. The Department argued that because its underlying decision rested on three documents, discovery was unnecessary. Following a hearing on April 16, 2015,. the court issued an order deferring a determination ?so that Defendants may ?le a comprehensive statement of reasons for its claim of ?public safety exemption?? The court further stated that ?it is likely that the case may be ripe for disposition at [the] next hearing, and the parties may brief and argue accordingly.? The parties submitted written memoranda and the court held a hearing on June 15, 2015 for oral argument. After considering the written submissions and oral arguments, the court decides the issues below. ANALYSIS General Laws c. 66, 10, ?the public records statute, was enacted ?to give the public broad access to government documents.?3 Georgiou v. Comrn?r of the Den?: of Indus. Aces, 67 Mass. App. Ct. 428, 431 (2006), quoting Harvard Crimson, Inc. V. President Fellows of Harvard College, Inc, 445 Mass. 745, 749 (2006). Documents held by public agencies ?are presumed to be public records unless the [D]epartrnent can prove with speci?city that the documents or parts of the documents fall within one of the . . . enumerated statutory exemptions.? Georgiou, 67 Mass. App. Ct. at 431. ?The burden shall be upon the custodian to prove with specificity the exemption - 5 which applies,? id, quoting G. L. c. 66, 10(c), and ?the applicability of an exemption to public disclosure must be determined on a case?by?case basis,? Worcester Tel. Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 383-3 84 (2002). When determining whether an exemption applies, the court must balance two considerations. First, ?[g]iven the statutory presumption in favor of disclosure, exemptions must be strictly construed.? Georgiou, 67 Mass. App. Ct. at 432, quoting Attorney Gen. V. Assistant Cornm?r of the Real Prop. Dep?t of Boston, 380 Mass. 623, 625 (2002). The court must weigh this consideration against the fact ?that the public records statute should not be used as a means of disregarding the considered judgment of the Legislature that the public right of access should be restricted in certain circumstances.? Georgiou, 67 Mass. App. Ct. at 432 (internal quotations omitted). In its memorandum, the Department cited to both the G. L. c. 4, 7, cl. 26(n), the public safety exemptioncl. 26(c), the privacy exemption.2 First, the Department contends that the public safety exemption applies to information about persons located in Massachusetts, persons located outside of Massachusetts, facilities located in Massachusetts, and facilities located outside of Massachusetts. Next, the Department argues that the privacy exemption applies to information about both personslocated in Massachusetts and persons located "outside of Massachusetts. The court will address each in turn. I. The Public Safety Exemption The Department first contends that many of its proposed redactions are authorized under the public safety exemption, G. L. c. 4, 7, cl. 26(n). This exemption protects from disclosure: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulner6ability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation or other infrastructure located within the commonwealth, the disclosure of Which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection of section 10 of chapter 66, is likely to jeopardize public safety. G. L. 4, 7, c1. 26(n). More the exemption protects ?records . . . relating to the security or safety of persons or buildings, structures [or] facilities . . . located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, . . . is likely to jeopardize public safety.? 1d. (emphasis added). The italicized language of the public safety exemption suggests that the legislature intended to imbue a heightened level of deference to the keeper and supervisor of public records. Such language as ?reasonable judgment? and ?likely to jeopardize? invoke a heightened level of subjectivity in the determination of the application of the exemption. See Fleet Nat?l Bank v. Commissioner of Revenue, 448 Mass. 441, 448 (2007) statute must be interpreted aCcording to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, . . . to the end that the purpose of its ?amers may be effectuated?). Such subjectivity is not seen in any of the other twenty public disclosure exemptions listed in G. L. c. 4, 7, cls. 26(a)? See L. c. 4, 7, 26(a)- In fact, the modi?er ?reasonable? is not found in the statutory language of any other exemption. See Ginther v. Commissioner of Ins, 427 Mass. 319, 324 (1998) (?Where the Legislature used different language in different paragraphs of the same statute, it intended different meanings?). Affording the keeper and supervisor of public records a. heightened level of deference is further supported by the fact that the public safety exemption was passed into law in 2002, the year. after the September 11 attacks in New York. See Fleet Nat?l Bank, 448 Mass. at 7 448. The legislature?s use of such deferential language, coupled with the timing of the exemption?s passage, indicates its intent to imbue greater discretion to the keeper and supervisor of public records to determine in their? reasonable judgment,? whether the release of a record ?is likely to jeopardize public safety.? Even with the heightened deference afforded to it, the Department must still demonstrate with speci?city that the exemption applies to each type of information redacted. First, the Department brie?y argues that the public safety exemption should apply to information pertaining to persons or facilities located outside of Massachusetts. However, the plain language of the public safety exemption is limited to ?persons or building . . . located within the Commonwealth.? Thus, information pertaining to any person or facility located outside of Massachusetts does not fall within the public safety exemption. The court must now consider whether the public safety exemption applies to information pertaining to individuals and facilities located within Massachusetts. In support of its invocation of the public safety exemption for the names, addresses, and telephone numbers of persons and facilities located within Massachusetts, the Department relies upon the VHA memorandum, which directed VHA officials not to disclose information identifying animal researchers, based on concerns for the personal safety of the personnel as well as the risk of damage to facilities used for animal research. The VHA memorandum cited to reports of homes and laboratories of scientists being vandalized, and attacks on the animal researchers themselves and their families. The VHA memorandum continued to advise that the release of information about the personnel and the facilities could decrease the ability'to adequately protect these individuals and thus expose them to ?potential attacks and harassment because it would essentially reveal who they are and where 8 they work, live, etc.? The Department argues that its reliance on a federal agency?s concerns for the physical safety of persons who conduct animal research and the risk 'of property damages to the facilities, provides a reasonable basis upon which it can conclude that disclosure ?is likely to jeopardize public safety.? The Department supplements the VHA memorandum and its internal documentation with ?well-documented violence against animal researchers and animal research facilities? to demonstrate that its determination was reasonable. It does so by submitting excerpts of the legislative history of the Animal Enterprise Terrorism Act 18 U.S.C. 43, Which discuss the need to expand the prior legislation to prevent against the enhanced employment of violence and intimidation by animal rights groups. The excerpts highlighted signi?cant acts of domestic terrorism by animal rights groups that were committed up through 2005 against researchers and research facilities. The Department also includes news excerpts from 2008 regarding similar acts by animal rights groups, and additional case law excerpts. From the record compiled by the Department, it is clear that some individuals and organizations who oppose the use of animals in research have perpetrated acts of criminality [and domestic terrorism in support of their opposition, and these acts have often targeted the individual researchers conducting the research and the facilities associated with such research It IS similarly clear to the court that the information redacted from the health certi?cates would be of the type that could assist an individual or organization in executing an act of criminality, as the information could serve to identify persons, facilities, or the location of the persons or facilities. Furthermore, it is suf?ciently clear to this court that the Department has demonstrated with suf?cient speci?city, that it in its ?reasonable judgment,? the information is ?likely to jeopardize public safety.? 9 challenge focuses primarily on this ?nal conclusion, as it argues that the Department has failed to demonstrate a nexus between the disclosure of the redacted information and the commission of crimes. To demonstrate the Department?s alleged failure to establish such a nexus, PETA submits screenshots of numerous publicly-available websites in which individual researchers and research institutions publicize their research online, as well as the existence of searchable federal databases and directories where one can identify accredited veterinarians and institutions, sellers of primates, and information regarding individuals and institutions receiving government contracts. In support of its contention, PETA points the court to an unpublished decision by the New York Supreme Court, Physicians Comm. For Responsible Med. v. Hogan, 2010 WL 4536802 (N .Y. Sup. Ct. 2010), which addressed the applicability of the life/ safety exemption under the New York Freedom of Information Law In 39%: the plaintiff challenged the New York State Of?ce of Mental Health?s provision of redacted records pertaining to the research of three employees of the New York Institute, whom the plaintiff speci?cally named in its request. lg. at Under the life/safety exemption, ?an agency is authorized to withhold records that, ?if disclosed could endanger the life or safety of any person?? 1d. at quoting NYS CLS Pub 0 The New York court found that the reliance upon the life/safety exemption for its redaction of the requested records was unpersuasive, as an insufficient nexus existed between the need to withhold the records and the enhancement in the threat to the individuals the OMH sought to protect. Ll. at While PETA holds Hogan Out as persuasive authority, the present case differs from 1?1ng in two key respects. First, the statutory language of the exemption does not afford a level of 10 deference that is imbued in the statutory language of the Massachusetts public safety exemption. Compare NYS CLS Pub 0 87(2)(f) with G. L. c. 4, 7, 01.2601). Thus, one would expect a court reviewing the agency?s determination under the New York life/safety exemption to exact greater scrutiny than a Massachusetts court reviewing an agency decision under our public safety exemption. Second, the plaintiff in Speci?cally requested records pertaining to the research - of three speci?cally?identified researchers. This means that the plaintiff in Hgg? already possessed key information regarding the researchers their identities which is not possessed here. Furthermore, the fact that the plaintiff already possessed the researchers? identities allowed the requesting party to demonstrate that signi?cant information was publicly available regarding the subject researchers in m, which has not been presented in this case. Thus, the court ?nds the New York court?s opinion in is of limited persuasion. argument that the Department has failed to demonstrate with speci?city that the public safety exemption applies to the redaction of the names, addresses, and telephone numbers of researchers and research facilities is ultimately unavailing. The Department has demonstrated that the researchers and research facilities are engaged in the importation of non-human primates that are commonly used for animal research. It has further shown that animal research conducted on non-human primates has been the target of extremist groups and criminal activities throughout the United States. In responding to public records request and redacting the above information, the Department speci?cally cited to and followed the guidance of a federal agency who had recently (as of 201 3) determined that the release of such information could jeopardize the safetyof researchers and security of research facilities dueto the threat of terrorist orcriminal acts. PETA has demonstrated that the public may conduct internet research and ?nd information 11 available on veterinarians, researchers who have performed research on animals, and facilities where such research may take place, but the availability of this information does not obviate the Department?s obligation to protect the information of persons and facilities located in the Commonwealth that it reasonably believes is likely to jeopardize public safety. Accordingly, the court holds that the Department has satis?ed its burden to demonstrate that the name, address, and telephone number of persons and facilities located within Massachusetts, contained in the redacted health certi?cates it provided to PETA pursuant to its public records request, fall within the public safety exemption,- G. L. 4, 7, cl. 26(n). The name, address and telephone number of persons and facilities located outside of Massachusetts, however, is not covered by the public safety exemption. II. The Privacy Exemption The Department further contends that, to the extent that the redacted information in the health certi?cates includes names, addresses, and phone numbers of individual persons, that information is protected under the privacy exemption, G. c. 4, 7, cl. 26(c). General Laws c. 4, 7, cl. 26(0) protects ?any.. materials or data relating to a speci?cally named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.? The privacy exemption_?requires a balancing between any claimed invasion of privacy and the interest of the public in disclosure.? Globe Newspaper Co. v. Police Comm?r of Boston, 419 Mass. 852, 858 (1995). Disclosure is only required ?[w]here the public interest in obtaining information substantially outweighs the seriousness of any invasion of privacy.? I_d. Generally, Massachusetts courts have concluded. that ?names and home addresses are not inherently private or personal in nature.? Georgiou, 67 Mass. App. Ct. at 433. However, ?[t]he 12 same information about a person, such as his name and address, might be protected against disclosure as an unwarranted invasion of privacy in one content and not in another.? E, at 434, quoting Torres v. Attorney Gen, 391 Mass. 1, 9 (1984). The United States Court of Appeals for the First Circuit,3 addressing concerns implicated in this case, considered the degree of privacy interests in one?s names and addresses applicable to the present circumstances in Federal Labor Relations Auth. v. United States Dep?t of the Navy, 941 F.2d 49 (lst Cir. 1991), where it noted that while there is a: relatiVely modest privacy interest . . . assigned to indiViduals? bare names and home addresses[,] . . . on the other side of the scales, . . . a discernable interest exists in the ability to retreat to the seclusion of one?s home and to avoid enforced disclosure of one?s address. While of modest strength, this interest is nonetheless real enough to be worthy of recognition and protection in appropriate circumstances. 1d. at 55-56. In the present case, as noted above, the Department has demonstrated that the persons - identi?ed on the health certi?cates, whether as consignees, consignors, or inspecting veterinarians, are engaged to some degree in the transport of non?human primates that are known to be used in animal research. It has furthershown that the animal research conducted on non-human primates has been the target of extremist groups and criminal activities, and that individuals involved in such research have been speci?cally targeted. While an individual has a diminished privacy at their place of work, the ?ability to retreat to the seclusion of one?s home and to avoid enforced disclosure of one?s address? maintains a level of protection from intrusion. See id. This level of protection is heightened when combined with the acts of harassment, criminality, and terrorism 3Reliance upon the decisions of the Court of Appeals for the First Circuit is appropriate where the second clause of the privacy exemption is at issue. See Georgiou, 67 Mass App. Ct. at 434 11.6 (?As to the second clause of exemption then, we may look not only to our cases but to Federal case law for guidance. 13 that the Department documented were perpetrated by extremists and others opposed to animal research. Therefore, the court ?nds that the consignees, consignors, and inspecting veterinarians have a considerable privacy interest in their identities, addresses, and telephone numbers. This considerable privacy interest is not ?Substantially outweighed? by the public?s interest in this information. The public?s ?interest in knowing Whether public servants are carrying out their duties in an ef?cient and law-abiding manner? is relatively limited when applied to the identities, addresses, and telephone numbers of the consignees, consignors, and veterinarians Whose information is captured on the health certi?cates. See Police Comm?r of Boston, 419 Mass. at 858. PETA does not allege that this personal information of these persons would further its own understanding of how public servants are carrying out their duties, and nor can this court fathom manners in which the public interest would substantially outweigh the individuals? privacy interest. Accordingly, the court finds that, to the extent that the redacted information in the health certificates includes names, addresses, and phone numbers of individual persons, that information i is protected under the privacy exemption, G. L. c. 4, 7, cl. 26(c). 14 ORDER For the foregoing reasons, it is hereby ORDERED that: 1. The names, addresses, and telephone numbers of persons and facilities located Within Massachusetts, contained in the redacted health certi?cates are within the public safety exemptionThe names, addresses, and telephone numbers of persons and facilities located outside of Massachusetts, contained in the redacted health certi?cates are not Within the public safety exemption, G. L. c. 4, 7, cl. 26(n). 3. The names, addresses, and telephone numbers identifying individual persons as consignees, consignors, or veterinarians contained in the redacted health certi?cates are within the privacy exemption, G. L. c. 4, 7, cl. 26(0). Christopher J. se Justice of uperior Court DATED: August 31, 2015