May 16, 2014 Supervisor of Records Office of the Secretary of the Commonwealth McCormack Building, Room 1719 One Ashburton Place Boston, MA 02108. RE: Public Records Part 1 - Request for Export/Import of Non-Human Primates Records in Massachusetts, and Part 2 - Safety Risks to Animals, People, and Buildings of Housing and Transport of NonHuman Primates Via UPS Dear Supervisor of Records: Pursuant to the Massachusetts Public Records Law, G.L. c. 66, § 10, the People for the Ethical Treatment of Animals (“PETA”), by its undersigned counsel, hereby appeals the withholding of information contained in public records relating to the export and import of non-human primates in Massachusetts. I. FACTUAL AND PROCEDURAL BACKGROUND On February 21, 2014, PETA submitted two requests for information to the Commissioner of the Department of Agricultural Resources (“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 for the year 2013. See Exhibit 1 (“Request No. 1”). The second request sought “all records referencing, reflecting or relating to alleged or claimed safety risks posed to animals, people and buildings involved with housing and transporting of non-human primates.” See Exhibit 2 (“Request No. 2”). On April 23, 2014, the Department responded to Request No. 1 by providing 11 pages of primate health inspection records. See Exhibit 3 (4/23/14 Department letter). The records are heavily redacted, concealing all identifying information about the owners, sellers, and recipients of the primates and the veterinarians who inspected them, including their names, addresses, and license and registration numbers. See Exhibit 4 (redacted records). The Department claimed that the redacted information is exempt from disclosure pursuant to Chapter 4, §7 (26) (n) because “[d]isclosure of information regarding such facilities could compromise the security of {00159529} 2 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.” See Exhibit 3. The Department also cryptically stated that the Department of Veterans Affairs (“VHA”) “instructs ‘not to release any personal information about VHA personnel engaged in any way in animal research . . . .’” However, the Department did not contend that the redacted information related to VHA personnel matters – let alone to VHA personnel engaged in animal research. On April 23, 2014, the Department also responded to Request No. 2 by notifying PETA that it “does not have any records” reflecting the “alleged or claimed safety risks posed to animals, people, and buildings involved with the housing and transporting of non-human primates.” See Exhibit 3. Accepting as true the Department’s statement that it has no records of any kind regarding or reflecting the alleged safety risk, PETA does not challenge the Department’s response to Request No 2. However, PETA does challenge the Department’s contemporaneous response to Request No. 1 as patently unfounded and inconsistent with its response to Request No. 2. The Department cannot (on the one hand) credibly claim that a safety risk exists, while (on the other hand) admittedly lacking all evidence to substantiate such a risk. II. THE APPLICABLE LEGAL STANDARD Massachusetts law broadly defines “public records” to include “documentary materials or data, regardless of physical form or characteristics,” made or received by officers and employees of any agency of the Commonwealth, unless falling within specified statutory exemptions. G.L. c. 4, § 7 (26); see also, generally, Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 382–383, 764 N.E.2d 847 (2002) (“The primary purpose of [the public records law] is to give the public broad access to governmental records”); Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 436, 446 N.E.2d 1051 (1983) (“the dominant purpose of the [public records] law is to afford the public broad access to governmental records”). This expresses the Legislature's considered judgment that “[t]he public has an interest in knowing whether public servants are carrying out their duties in an efficient and law-abiding manner,” Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158, 385 N.E.2d 505 (1979), and that “[g]reater access to information about the actions of public officers and institutions is increasingly ... an essential ingredient of public confidence in government,” New Bedford Standard–Times Publ. Co. v. Clerk of the Third Dist. Ct. of Bristol 377 Mass. 404, 417, 387 N.E.2d 110 (1979) (Abrams, J., concurring). {00159529} 3 In light of the statutory presumption of disclosure, exemptions from the Public Records Law are strictly and narrowly construed. In a dispute over withheld information, there is a clear “presumption that the record sought is public” and the custodian of the document has the burden of proving “with specificity” that the claimed exemption applies to the withheld information. See G.L. c. 66, § 10(c); see also, generally, Worcester Telegram, 436 Mass. at 383, 764 N.E.2d at 852 (“The custodian of the requested record has the burden of proving, with specificity, the applicability of the relevant exemption”); Suffolk Const. Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444, 454, 870 N.E.2d 33, 41 - 42 (2007) (same). Chapter 4, §7 (26) (n) (the “Public Safety Exemption”) exempts 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 vulnerability 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 (b) of section 10 of chapter 66, is likely to jeopardize public safety.” In this case, the Department has not met, and cannot meet, its burden of demonstrating that the Public Safety Exemption applies to any of the withheld information. III. THE REDACTED INFORMATION IS NOT EXEMPT The Department invoked the Public Safety Exemption based on its alleged concern that disclosing the redacted information “could compromise the security of locations housing non-human primates.” See Exhibit 3 (emphasis added). However, such conclusory and broad-brush conjecture falls far short of overcoming the statutory presumption of disclosure. As an initial matter, most of the redacted information has nothing to do with the “locations” where the primates are housed. Therefore, any alleged concerns that revealing -- wholly unrelated -- information “could compromise the security of [those] locations” are untenable on their face. There is simply no evidence that the names, addresses, or accreditation numbers of veterinarian-inspectors would reveal locations where the inspected primates are or were housed. Likewise, nothing on the face of these records suggests any nexus between the locations where primates are or were housed, and unrelated information such as the names, telephone numbers or addresses of the owners or sellers of these animals. Therefore, the purported reason for protecting the redacted information falls under its own weight. Furthermore, even with respect to redacted information that arguably reveals the “locations housing non-human primates,” nothing supports the Department’s ipse {00159529} 4 dixit that disclosing that information “could compromise the security of [those] locations[.]” See Exhibit 3. Quite to the contrary: as confirmed in response to PETA’s Request No. 2, the Department does not have any records” reflecting the “alleged or claimed safety risks posed to animals, people, and buildings involved with the housing and transporting of non-human primates.” See id. (Emphasis added). To the extent that the Department purports to rely on a VHA memo regarding personal information of VHA researchers, such reliance is misplaced for at least three reasons. First, none of the information at issue here involves the disclosure of personal information of VHA researchers. Second, the VHA memo concerns requests under the federal Freedom of Information Act (“FOIA”), not the Massachusetts Public Records Law. Third, the VHA memo involves a directive to FOIA officers to withhold certain information pursuant to FOIA’s privacy exemption, 5 U.S.C. § 552(b)(6). Whether, to what extent, and under what circumstances, a federal FOIA officer may determine that disclosing a VHA researcher’s personal information constitutes an unwarranted invasion of privacy within the scope of FOIA’s privacy exemption has simply no bearing on the question of whether the information requested by PETA in this case is shielded from disclosure under an entirely different statute, i.e., the Public Safety Exemption codified under Massachusetts law.1 The complete absence of even a single document in the Department’s possession reflecting the alleged or claimed safety risk demonstrates that the Department could not have made – and did not make – a “reasonable judgment” that such a risk exists in this case. Because the Department has not met, and cannot meet, its burden of proving “with specificity” that the Public Safety Exemption applies, this appeal should be sustained in all respects and the Department should be ordered to disclose all of the withheld information. Respectfully submitted, Martina Bernstein Director of Litigation 626-376-3744 MartinaB@petaf.org 1 Notably, the Department does not claim that disclosing any of the withheld information constitutes an unwarranted invasion of personal privacy, within the scope of the privacy exemption of Massachusetts’ Public Records Law. G.L. c. 4 § 7(c). {00159529} EXHIBIT 1 From: To: Subject: Date: Importance: Jeremy Beckham Greg.Watson@state.ma.us February 21, 2014 Records Request from PETA (1 of 2) Friday, February 21, 2014 3:03:00 PM High February 21, 2014 Gregory C. Watson, Commissioner Massachusetts Department of Agricultural Resources 251 Causeway Street, Suite 500 Boston, MA 02114-2151 Via E-Mail: Greg.Watson@state.ma.us Dear Mr. Watson, Pursuant to the state open records law, Mass. Gen. Laws ch. 4, sec. 7, cl. 26; ch. 66, secs. 10 to 18, I write to request access to and a copy of any and all permits, licenses, health certificates, and other documentation related to the export and/or import of nonhuman primates in Massachusetts during 2013. If your agency does not maintain these public records, please let me know who does and include the proper custodian's name and address. I agree to pay any reasonable copying and postage fees of not more than $50.00. If the cost would be greater than this amount, please notify me. Please provide a receipt indicating the charges for each document. As provided by the open records law, I will expect your response within ten (10) business days. See Mass. Gen. Laws ch. 66, Sec. 10(b). If you choose to deny this request, please provide a written explanation for the denial that includes a reference to the specific statutory exemption(s) upon which you rely, a detailed explanation of your basis for invoking the exemption(s), and any documents you rely upon to support the application of the exemption(s). Also, please provide all segregable portions of otherwise exempt material. Thank you for your assistance. Sincerely,     Jeremy Beckham Laboratory Campaigns Manager Laboratory Investigations Department People for the Ethical Treatment of Animals (PETA) 501 Front St. Norfolk, VA 23510 469-286-8558 JeremyB@peta.org EXHIBIT 2 From: To: Subject: Date: Importance: Jeremy Beckham greg.watson@state.ma.us February 21, 2014 Records Request from PETA (2 of 2) Friday, February 21, 2014 3:03:36 PM High February 21, 2014 Gregory C. Watson, Commissioner Massachusetts Department of Agricultural Resources 251 Causeway Street, Suite 500 Boston, MA 02114-2151 Via E-Mail: Greg.Watson@state.ma.us Dear Mr. Watson, Pursuant to the state open records law, Mass. Gen. Laws ch. 4, sec. 7, cl. 26; ch. 66, secs. 10 to 18, I write to request access to and a copy of all records referencing, reflecting 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 non-human primates. If your agency does not maintain these public records, please let me know who does and include the proper custodian's name and address. I agree to pay any reasonable copying and postage fees of not more than $50.00. If the cost would be greater than this amount, please notify me. Please provide a receipt indicating the charges for each document. As provided by the open records law, I will expect your response within ten (10) business days. See Mass. Gen. Laws ch. 66, Sec. 10(b). If you choose to deny this request, please provide a written explanation for the denial that includes a reference to the specific statutory exemption(s) upon which you rely, a detailed explanation of your basis for invoking the exemption(s), and any documents you rely upon to support the application of the exemption(s). Also, please provide all segregable portions of otherwise exempt material. Thank you for your assistance. Sincerely,     Jeremy Beckham Laboratory Campaigns Manager Laboratory Investigations Department People for the Ethical Treatment of Animals (PETA) 501 Front St. Norfolk, VA 23510 469-286-8558 JeremyB@peta.org EXHIBIT 3 THE COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS Department of Agricultural Resources 251 Causeway Street, Suite 500, Boston, MA 02114 617-626-1700 fax: 617-626-1850 www.mass.gov/agr DEVAL L. PATRICK Governor TIMOTHY P. MURRAY Lieutenant Governor RICHARD K. SULLIVAN JR. Secretary GREGORY C. WATSON Commissioner April 23, 2014 Jeremy Beckham, Laboratory Campaigns Manager People for the Ethical Treatment of Animals Laboratory Investigations Department 501 Front Street Norfolk, VA 23510 VIA EMAIL RE: Public Records Part 1 - Request for Export/Import of Non-Human Primates Records in Massachusetts, and Part 2 - Safety Risks to Animals, People, and Buildings of Housing and Transport of Non-Human Primates Dear Mr. Beckham: This letter is in response to your two emails dated February 21, 2014, to Gregory C. Watson, Commissioner of the Department of Agricultural Resources, requesting: (1) access to and a copy of any and all permits, licenses, health certificates, and other documentation related to the export and/or import of non-human primates in Massachusetts for the year 2013, and (2) all records referencing, reflecting or relating to alleged or claimed safety risks posed to animals, people and buildings involved with housing and transporting of non-human primates. In response to Part 1 of your request, please find enclosed, pages 01 through 11 that are copies of interstate health certificates for non-human primates. On the certificates, there is redacted information concerning the Consignor/Consignee name and addresses, USDA license/registration number, name of veterinarian and veterinarian’s address, telephone number and license/accreditation numbers. Disclosure of information regarding such facilities 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. Therefore, such information is exempt from public records law. Please see reference below to Chapter 4, §7 (26) (n) as stated below: “Twenty-sixth, “Public records” shall mean all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose, unless such materials or data fall within the following exemptions in that they are: n) 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 vulnerability 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 (b) of section 10 of chapter 66, is likely to jeopardize public safety.” Also, in a memo published by the Department of Veterans Affairs, also enclosed, relating to Veterans Health Administration (VHA), instructs “not to release any personal information about VHA personnel engaged in any way in animal research in response to requests for that information.” There are no other records the Department holds regarding non-human primates. In response to Part 2 of your request, the Department does not have any records responsive to your request for alleged or claimed safety risks posed to animals, people, and buildings involved with the housing and transporting of non-human primates. If you wish to make an appeal, please contact the Supervisor of Records at the Office of the Secretary of the Commonwealth, McCormack Building, Room 1719, One Ashburton Place, Boston, MA 02108. The following information should be included: 1) the written request you made to the records custodian. Your request must be over ten (10) days and under ninety (90) days old; 2) the written response, if any, that you received from the records custodian; and 3) a brief letter from you to the Supervisor of Records detailing the reason for the appeal. Thank you for your payment. If you have any questions, please contact me at 617-6261718 or send me an email at carol.szocik@state.ma.us. Thank you for your assistance. Sincerely, Carol A. Szocik Legal Assistant Enclosures/Attachments: Pages 01-11 Health Certificates & Memo from Dept. of Veterans Affairs Cc: Gregory C. Watson, Commissioner Michael Cahill, Director of the Division of Animal Health Page 2 of 2 EXHIBIT 4 STATE OF SOUTH CAROL CERTIFICATE OF VETERINARY INSPECTI Clemson'~i~estock Poultry Health P.O .. Boxi62406, Columbia, SC 29224 (500 Clem~o,~Road, Columbia, SC 29229) FAX 803-736-0885 't ... ,........ ;@~ ...~~.> . . . . DHORSES Accredit(!d NO....,..................................... .DSWINE Validated No ............. ,.. ,............... ,.. ,....... " ...... ;...... ;'f.);;~,:~ ........ - .....".. .............~~'... :.-;: ... DSHEEP Qualified No.. ,................ ,........................ ./.............;;.....~:i?." o GOATS . NPIP NQ'................................... ,.... DpOULTRY TEST RESULTS be FREE from symptoms of infectipus, contagious or abo~~::i';,a.iram familiar with the entrance requirements of th e state or country of DATE ~J I 'II ,1!~)"-I·J .,< ~ I Name of Owner/Agent (Please Print) SC Form 147 (Rev. 9/09) DISTRIBUnON: ORIGINAL WHITE (1) & CANARY (2) - State Veterinarian 01 .". PINK (3)- To Accompany Shipment GOLDENROD (4) - Veterinarian's Copy I _.. I ... Valid for 30 days I ... I following the Issue date. Con1act state of desIinaIIon for cunenl movement requirements. ~_usda.!!OVMIs!eg Species OAvian OHorse OCallle OSheep OGoats OSwine 05emen \ liOlher fr, rt-.....y "::"1' =.E~, OFJeeOW. ,No.• 1- 1 Purpose of Movement o InlJasiale o Bmeding o Feedi1g 0 lnIelSlate 0 Exhibition 0 sale North Carolina Department of Agriculture & Consumer Services Veterinary Division 1030 Mall Service Center. Raleigh, NC 276~·1030 Q.Show 0 Slaughter p"OIher,_ _ __ OFJee Phone (919) 733·7601 Fax (919) 733-2277 Comments: DAOB PRVStalltj No. of Animals , .. ce_. as an aCCllldited veterinarian. lllat the above desc:ribed animals have been inspeded by me and that lhey show no signs of infectious. contagious and/or communicable disease (except wheJe noted). The vaa:inaIIons and test results are Indicated on j celtilicate. To Ule best of my knowtedge. !he animals listed on this Cestificate meet the state ofdestination and federal inIerstata requirements. No further wananly is made or 1mpHed." city: Veterinarian's Signature: USDA Accredltati~n Code: (J~ White·State Veterinarians's Copy· Canary·State·Veterinarian's Copy· Pink-To Accompany Shipment· Goldenrod·Retained by IssuinQ Veterinarian OHORSES .. OSWINE OSHEEP \ '\f· OGOATS .. ·· . .ORIGINAL WHITE (1) & CANA:RYJ(21 GOLDENROD (4) - Veterinarian's Copy I": ~" NAME, AND/OR TAnoo NUMBER OR OTHER IDENnFICAnON BREED - COMMON OR SCIENTIFIC See continuation page (s) for additional animals. AGE I SEX NAME VETERINARY CERTIFICATION: I certify that the animals described in box 7 have been examined by me ~r\sd1t~, that the Information pro\lided in box 8 is true and accurate to the best of my knowledge, and that the following findinga have been made ("X" applicable statements). ISSUING VETERINARIAN ~ "" APHIS Form 7001 (NOV 2010) This certificate is valid for 30 days after issuance' ttJ4/ - .. .. UCENSE NUMBER AND STATE 5/2812013 ~ { OMS APPRoveD 057g.{)()36 0579-0333 NAME. ANDIOR TATIOO NUMBER OR OTHeR IDENTIFICATION BREED ­ COMMON OR SCIENTIFIC NAME OTHER VACCINATIC,Nd, TREATMENT. ANDIOR TESTS AI"I:' RESULTS AGE I SEX VETERINARY CERTIFICATION: I certify that the animals described in box 7 have been examined by 'lie trls d1te, that the informatlon pro\lide$lln box 8 is true and accurate to .the best r:4 my knowledge. and that the fonowing finJj'Ig5 ;'IcNe been made ("X· applicable Statements). 5/2812013 (NOV 2010) This certificate is valid for 30 days after Issuance (JS ~. ' .... ItI :~ NAME, ANDIOR TATTOO NUMBER OR OTHER IDENTIFICATION BREED ­ COMMON OR SCIENTIFIC NAME See continuation page (5) for addHional animals. AGE I SEX VETERINARY CERTIFICATION: I certify that the animals described In box 7 have been examined by me!hiJoate, that the information ,orolllded in box 8 is true and ac:curale to the best of my knowledge, and that the following findings have been made ("X" applicable statements). . ,. i I l ......_ •• _..ut_..I 6&...­ _ _ _...____...... _ r _a..:_:. _ J -L! 1_ It_.. _~ r- L._... ., - STATE Accredited If yes, please NAiioNA":LACCREDITAifoN'NUMBE'R­ ; . 512812013 7001 (NOV 2010) This certificate Is valid for 30 days after Issuance ~ c 'J #_ Page 2 of2 Certificate NO. AnimallD Scientific Name 7 M11075 ISex I I AnimallD I ISex Cynomolgus F 8 M11080 Cynomolgus F 9 M11066 Cynomolgus F 10 M11079 Cynomolgus F 11 M10928 Cynomolgus F 12 M10926 Cynomolgus F 13 M10927 Cynomolgus F 14 M10839 Cynomolgus F 15 M11024· Cynomolgus M 16 M11027 Cynomolgus M 17 M11026 Cynomolgus M 18 M11132 Cynomolgus M Cynomolgus M 38 M11120 Cynomolgus M ,..,. 20 M11134 Cynomolgus M 39 M11122 Cynomolgus M