SJC-12207 COMMONWEALTH OF MASSACHUSETTS APPEALS COURT No. 2016-P-0074 PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. Plaintiff-Appellant, v. DEPARTMENT OF AGRICULTURAL RESOURCES, et al., Defendants-Appellees. On Appeal from a Decision of the Suffolk Superior Court BRIEF OF PLAINTIFF-APPELLANT PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. Counsel for the Appellant, David Milton, BBO#668908 Drew Glassroth, BBO# 681725 Law Offices of Howard Friedman, PC 90 Canal Street, 5th Floor Boston, MA 02114 617-742-4100 dmilton@civil-rights-law.com dglassroth@civil-rights-law.com Martina Bernstein, admitted pro hac vice PETA Foundation 1536 16th Street, N.W. Washington, DC 20036 202-483-7382 martinab@petaf.org April 15, 2016 CORPORATE DISCLOSURE STATEMENT Pursuant People for to the SJC Rule Ethical 1:21, Treatment Plaintiff-Appellant of Animals, Inc. certifies that it does not have a parent corporation and that no publicly held corporation owns 10% or more of its stock. i TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . iv Issues Presented . . . . . . . . . . . . . . . . . . 1 Statement of the Case . . . . . . . . . . . . . . . 2 Summary of Argument . . . . . . . . . . . . . . . . 13 Argument . . . . . . . . . . . . . . . . . . . . . 15 I. Standard of review. . . . . . . . . . . . 15 II. The lower court abused its discretion by entering judgment against PETA without permitting any discovery. . . . . 16 III. The motion judge erred by finding that information identifying individuals and entities in Massachusetts engaged in interstate transport of animals is protected from disclosure under the public safety exemption. . . . . . . 22 A. The Public Records Law. . . . . . . B. Animal health certificates are not within the class of records to which the public safety exemption applies. . . . . . . . . . 23 C. The court erred by according the Department’s determination a “heightened level of deference,” which is unwarranted by the language of the exemption . . . . . D. 22 25 The motion judge erred by resolving disputed facts regarding the likelihood of a claimed safety risk in a “trial by affidavits” . . . . . 31 ii 1. 2. IV. A factual dispute existed about whether the VHA memorandum justified the Department’s redactions. . . . 32 A factual dispute existed about whether miscellaneous reports of past crimes by those opposed to animal research justified the Department’s redactions. . . . 36 The motion judge erred in concluding that the privacy exemption applies. . . . . . . . . 41 Conclusion . . . . . . . . . . . . . . . . . . . . Addendum iii 45 TABLE OF AUTHORITIES Cases Page Alphas Co. v. Kilduff, 72 Mass. App. Ct. 104 (2008) . . . . . 16, 19, 21 Attorney Gen. v. Bailey, 386 Mass. 367 (1982) . . . . . . . . . . . 16, 31 Banushi v. Dorfman, 438 Mass. 242 (2002) . . . . . . . . . . . . . 25 Bougas v. Chief of Police of Lexington, 371 Mass. 59 (1976). . . . . . . . . . . . . . 23 Brown v. DePuy Spine, Inc., 22 Mass. L. Rptr. 425 (Mass. Super. 2007). . . 17 Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587(2005). . . . . . . . . . 17, 22, 43 Cardone v. Boston Reg’l Med. Ctr., Inc., 60 Mass. App. Ct. 179 (2003) . . . . . . . . . 17 Commonwealth v. Boucher, 438 Mass. 274 (2002) . . . . . . . . . . . . . 28 Commonwealth v. Brown, 431 Mass. 772 (2000) . . . . . . . . . . . . . 28 Commonwealth v. Burke, 390 Mass. 480 (1983) . . . . . . . . . . . . . 30 Commonwealth v. Campbell, 415 Mass. 697 (1993) . . . . . . . . . . . . . 28 Commonwealth v. Funches, 379 Mass. 283 (1979) . . . . . . . . . . . . . 21 District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) . . . . . . . 22-23, 29 Doe v. XYZ, Inc., 75 Mass. App. Ct. 311 (2009) . . . . . . . . . 17 iv Federal Labor Relations Auth. v. U.S. Dep’t of the Navy, 941 F.2d 49 (1st Cir. 1991) . . . 44 General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798 (1999) . . . . . . . . . . . . . 23 Georgiou v. Comm’r of the Dept. of Indus. Accidents, 67 Mass. App. Ct. 428 (2006) . . . . . . . . . 42 Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427 (1983) . . . . . . . . . . . . . 22 Globe Newspaper Co. v. District Attorney for Middle Dist., 439 Mass. 374 (2003) . . . . 22, 27 Globe Newspaper Co. v. Police Comm’r of Boston, 419 Mass. 852 (1995) . . . . . . . . . . . 42, 44 Hennessey v. Stop & Shop Supermarket Co., 65 Mass. App. Ct. 88 (2005). . . . . . . . 16, 17 Henshaw v. Cabeceiras, 14 Mass. App. Ct. 225 (1982) . . . . . . . . . 31 In re Subpoena Duces Tecum, 445 Mass. 685 (2006) . . . . . . . . . . . . . 23 Juliano v. Simpson, 461 Mass. 527 (2012) . . . . . . . . . . . . . 15 Pastan v. Pastan, 378 Mass. 148 (1979) . . . . . . . . . . . . . 26 Pottle v. Sch. Comm. of Braintree, 395 Mass. 861 (1985). . . . . . . . . . . . 43-44 Reinstein v. Police Comm’r of Boston, 378 Mass. 281 (1979) . . . . . . . . . . . . . 17 Resolution Trust Corp. v. North Bridge Assocs., 22 F.3d 1198 (1st Cir. 1994) . . . . . . . . . 19 Riley v. Davison Const. Co., Inc., 381 Mass. 432 (1980) . . . . . . . . . . . . . 26 v Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378 (2002) . . . . . . . 22-23, 29 Zoning Bd. of Appeals of Amesbury v. Housing Appeals Comm., 457 Mass. 748 (2010). . . . . . 25 Statutes G. L. c. 4, § 7, cl. 26(c) . . . . . . . . . . passim G. L. c. 4, § 7, cl. 26(f) . . . . . . . . . . . 28-29 G. L. c. 4, § 7, cl. 26(n) . . . . . . . . . . passim G. L. c. 66, § 10(b). . . . . . . . . . . . . 5, 30-31 G. L. c. 66, § 10(c). . . . . . . . . . . 22-23, 29-30 18 U.S.C. § 43. . . . . . . . . . . . . . . . . . . 36 Other Authorities 321 Code Mass. Regs. § 2.15(11) (2015). . . . . 25, 34 vi ISSUES PRESENTED 1. his Whether the motion judge (Muse, J.) abused discretion by entering judgment against PETA without permitting any discovery. 2. Whether the motion judge erred in a matter of first impression by interpreting the “public safety exemption” to the Massachusetts Public Records Law, G. L. c. business 4, § 7, addresses, cl. 26(n), and to telephone apply numbers to names, contained within animal health certificates. a. Whether finding within that the the animal class motion health of records judge erred certificates included in by fall the statutory phrase “any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation or other infrastructure,” G. L. c. 4, § 7, cl. 26(n). b. giving Whether a the heightened motion level of judge erred deference to by the Department’s determination that the public safety exemption applied. c. resolving Whether disputed the motion facts, - 1 - on judge summary erred by judgment, about whether certificates disclosure was likely to of unredacted jeopardize public safety. 3. Whether the motion judge erred by concluding that names and business addresses of individuals and entities on animal health certificates constitute “highly personal information” exempt from disclosure under the privacy exemption to the Massachusetts Public Records Law, G. L. c. 4, § 7, cl. 26(c). STATEMENT OF THE CASE Nature of the Case This is a public records case on appeal from a grant of judgment as a matter of law to Defendants. In 2014, Plaintiff-Appellant People for the Ethical Treatment of Animals, Inc. (“PETA”) filed suit under the Massachusetts Public Records Law, G. L. c. 66, § 10, to documents compel in Massachusetts the disclosure custody Department (“Department”).1 The of of of unredacted the 1 of Defendant-Appellee Agricultural documents copies at Resources issue are PETA also named as a defendant Gregory C. Watson, then Commissioner of the Massachusetts Department of Agricultural Resources, in his capacity as custodian of the Department’s records. John Lebeaux became Commissioner in February 2015 and was automatically substituted as a defendant pursuant to - 2 - certificates of animal health inspections relating to the import and export of non-human primates in Massachusetts. The Department produced certificates to PETA with the names, addresses, and other identifying information about the senders, recipients, and veterinarian inspectors of the animals redacted. The Department claims that the redacted information is exempt from public disclosure under the public safety and privacy Records Law. exemptions PETA to the challenges Massachusetts the propriety Public of the redactions. Background On February 21, 2014, PETA submitted two public records requests to the Department seeking (1) records relating to primates in the import Massachusetts and in export 2013 and of non-human (2) records relating to alleged or claimed safety risks posed to animals, people, and buildings involved in transporting and housing non-human primates. JA 20304.2 Mass. R. Civ. P. 25(d)(1). PETA refers to the Commissioner and the Department collectively as the Department. 2 References to the Joint Appendix are cited as “JA [page].” References to the Addendum attached to this brief are cited as “Add. [page].” - 3 - The Department responded to PETA’s first request by providing 11 pages of heavily redacted interstate veterinary health certificates. JA 205-15. The Department redacted all information identifying “the Consignor/Consignee name and addresses, USDA license/registration number, name of veterinarian and veterinarian’s address, telephone number and license/accreditation numbers.” JA 216. The redactions make it impossible to determine who is sending nonhuman primates into Massachusetts, who is receiving them, and who is conducting the health inspections. In response to PETA’s second request, the Department stated that it had no responsive records. JA 216-17. The Department claimed that the names, addresses, and license certificates G. L. c. 4, information it were from § exempt 7, had cl. 26(n), redacted public the from disclosure so-called the by public safety exemption. JA 216-17. The Department claimed that information could compromise regarding the “such security of facilities locations [sic] 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.” Id. The Department gave no other reason for - 4 - withholding the redacted information, although it cited and enclosed a memorandum published by the U.S. Department Health of Veterans Administration Affairs instructing (“VHA”) officials Veterans “not to release any personal information about VHA personnel engaged in any way in animal research.” JA 217-20. PETA appealed the Department’s redactions to the Supervisor of Public Records pursuant to G. L. c. 66, § 10(b). By letter dated June 23, 2014, the Supervisor upheld the Department’s redactions. JA 221-22. Procedural History On October 14, 2014, PETA filed the instant case seeking After injunctive the and Department declaratory answered relief. the JA 3-8. complaint, PETA served discovery requests, including interrogatories, requests for production, and requests to admit. JA 228-34, 239-247. In response, the Department filed an emergency motion for a protective order staying all discovery. JA 16-22. The Department submitted an affidavit from a department official stating that it had relied withhold on the only three redacted documents information - 5 - in under deciding the to public safety exemption.3 Id. The Department asked the court to stay discovery in anticipation of filing a summary judgment motion, arguing that the court would be able to resolve the legal issues based on the three documents it had submitted. JA 17. PETA Department opposed had the failed motion, to arguing demonstrate that good the cause to stay all discovery and that the Department should not be permitted to decide unilaterally what the factual record would be for purposes of summary judgment. JA 26-33. PETA argued that it was entitled to discover any documents and information in the Department’s possession undermining the Department’s assertion that disclosing unredacted animal health certificates would threaten public safety. JA 30. The motion judge (Muse, J.) held a hearing on April 16, 2015. JA 34-69. At the hearing, the court proposed, sua sponte, that 3 the Department file a The affidavit was from Michael Cahill, the Director of the Department’s Division of Animal Control. The three documents were the VHA memorandum referenced above, a 2013 decision of the Supervisor of Public Records, and a 2013 internal memorandum prepared by the Department in response to another of PETA’s public records requests. JA 23-24, 218-20, 22324, 225-27. The Department had previously disclosed the internal memorandum to the Supervisor of Public Records but not to PETA. JA 223-24. - 6 - supplemental affidavit setting forth all the facts on which the Department relied in deciding to withhold the redacted information. JA 48-49. Based on this supplemental affidavit, the court would decide whether the Department had met its burden of establishing the applicability of the exemption. JA 59-60. PETA objected to this procedure on the grounds that it was entitled to discovery of any undisclosed facts in the Department’s possession tending to show that providing unredacted health certificates was not likely to jeopardize public safety. JA 55-59. The court stated that if the Department offered any facts in support of summary judgment that were disputable, “then discovery sounds like it’s appropriate.” JA 59. After written the hearing, order stating the motion that a judge ruling issued on a the Department’s emergency motion was “deferred so that Defendants may file a comprehensive statement of reasons for its claim of ‘public safety exemption.’” JA 72. The order further stated, “[I]t is likely that the case may be ripe for disposition at [the] next hearing, and the parties accordingly.” Id. - 7 - may brief and argue On June “Memorandum 1, in 2015, Support the of Department Judgment as a filed a Matter of Law.” JA 77. There was no accompanying motion filed pursuant Mass. R. Civ. P. 56, nor did the Department serve a statement of allegedly uncontested material facts as required by Superior Court Rule 9A(b)(5). The Department attached memorandum, including testimony, and a multiple a news press exhibits article, to the congressional release, referring to miscellaneous acts of violence committed by animalrights activists over the past two decades. JA 248284. The Department affidavit from the also submitted director of a its supplemental Animal Control Division reiterating that the Department relied solely on the three affidavit: the memo, an and documents referred Department’s opinion of to internal the the earlier memo, supervisor the of VHA public records. JA 73-76. In addition, memorandum, for the the Department first time, claimed that the in its redacted information was also exempt from disclosure under the privacy exemption, G. L. c. 4, § 7, cl. 26(c). PETA opposed the Department’s request for judgment on two grounds. First, PETA argued that the - 8 - Department had failed to meet its burden of proof that the information redacted from the animal health certificates was exempt from disclosure under either the public safety exemption or the privacy exemption. JA 100-15. PETA Department’s things, evidence, that researchers submitted the and materials to demonstrating, names and research refute among addresses facilities of are the other animal widely available in the public domain and routinely disclosed by other state and federal government agencies. See, e.g., JA numerous 125-41, 286-406. unredacted Among animal the health exhibits were certificates—the very type of documents at issue—that the Massachusetts Division of Fisheries and Wildlife, the agency charged with regulating in this area, had provided in response to a public records request. JA 126, ¶ 9; JA 286-406. Second, PETA argued that summary judgment was premature due to the lack of discovery. PETA submitted an affidavit from counsel, in the nature of a Rule 56(f) affidavit, consideration opportunity of to asking the conduct the merits court until discovery.4 4 to PETA JA defer had 118-24. an The Because the Department never filed a motion for summary judgment pursuant to Rule 56(a), Rule 56(f) - 9 - affidavit described the particular discovery PETA sought, including information about how the Department handles these health certificates, information or documents that the Department did not rely on because they do not support its position, and information concerning the Department’s purported reliance on the VHA memorandum. JA 121-22. In a Memorandum and Order dated August 31, 2015, the motion judge allowed “the Department’s memorandum” almost in full. Add. 2. The court held that the public safety exemption applied to the names, addresses, and telephone numbers of all persons and facilities within Massachusetts that appear on the health certificates, and that the Department’s redactions of this information was proper. Add. 14. The court held that the public safety exemption did not apply to persons and facilities located outside Massachusetts, but that the privacy exemption nevertheless protected against disclosure of the names, addresses, and phone numbers of all individual persons appearing on the health certificates. Id. In reaching this conclusion, the judge held, as a matter of first impression, did not formally apply. - 10 - that the public safety exemption requires a “heightened level of deference” to the determinations of the custodian and the supervisor of public records. Add. 6. The court stated that the legislature’s inclusion in the exemption of “[s]uch language as ‘reasonable judgment’ and ‘likely to jeopardize’ invoke a heightened level of subjectivity in the determination of the application of the exemption.” Id. The court further stated that legislative intent to afford “a heightened degree of deference” to the record custodian and the supervisor of record “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.” Id. Applying found that Department, this “[f]rom it organizations research deferential have is who the clear oppose perpetrated standard, record compiled that some the use acts the of court by individuals of animals criminality the and in and domestic terrorism in support of their opposition, and these acts have often targeted the individual researchers conducting the research and the facilities - 11 - associated with such research.”5 Add. 8. The court found it “similarly clear . . . that the information redacted from the health certificates would be of a type that could assist an individual or organization in executing because the an act redacted of criminality.” information Id. “could This is serve to identify persons, facilities, or the location of the persons or facilities.” Id. Based on these findings, the court concluded that the “Department ha[d] demonstrated with sufficient specificity, that in its ‘reasonable judgment,’ the information [redacted on the health certificates] is ‘likely to jeopardize public safety.’” Add. 8. The Court’s Memorandum and Order did not address PETA’s request and affidavit under Rule 56(f) that it be allowed to take discovery. Judgment entered for the Department on September 10, 2015. JA 199. This timely appeal follows. 5 The “record compiled by the Department” refers not only to the three documents the Department submitted in support of its emergency motion for a protective order (which at the time it contended were the only relevant documents) but also to numerous supplemental exhibits the Department attached to its “Memorandum in Support of Judgment as a Matter of Law.” JA 73, 248-284. - 12 - SUMMARY OF ARGUMENT This Court should vacate the portions of the judgment below that are on appeal, and remand the case for discovery.6 The lower court abused its discretion by entering judgment as a matter of law for the Department without permitting discovery. The court allowed the Department to submit factual materials in support of its position while denying PETA any opportunity to discover other relevant information in the Department’s possession that might undermine its position. PETA raised these concerns in a Rule 56(f) affidavit, which the court did not address. The motion judge further erred by interpreting the public safety exemption broadly to include information identifying the senders, recipients, and veterinarian transported inspectors into and out of of non-human primates Massachusetts. This interpretation is inconsistent with the plain language 6 Neither party has appealed Item 2 of the judgment below, which states, “The names, addresses, and telephone numbers of persons and facilities located outside of Massachusetts, contained in the redacted health certificates are not within the public safety exemption, G.L. c. 4, S 7, cl. 26(n).” JA 200. This portion of the judgment should thus remain intact. - 13 - of the exemption and the broader statutory context in which the exemption arises. The court erroneously interpreted the phrase “in the reasonable judgment of the record custodian. . . is likely to jeopardize public safety,” G. L. c. 4, § 7, cl. 26(n), as “invok[ing] a heightened level of subjectivity in the application of the exemption” and as requiring the court to give “a heightened level of deference” to the custodian’s determination that the public safety exemption applied. Contrary to this reading, the plain meaning of the terms “reasonable judgment” and “likely requires that courts custodian by an to jeopardize review objective the public judgment standard, and safety” of the that the public safety risk must be more than speculative. The court erred by deciding contested issues of fact on summary judgment rather than merely identifying them. Even without the opportunity to take any discovery, PETA submitted evidence that refuted the factual claim that assertions disclosure underlying of the the redacted Department’s names and addresses would likely jeopardize public safety. The trial judge erred by resolving these disputed issues in a “trial by affidavits.” - 14 - Finally, the lower court ignored clear precedent of this Court and the Supreme Judicial Court in concluding that the privacy exemption applied to the names and individuals business contact identified information on veterinary of the health certificates. ARGUMENT I. Standard of review. The motion judge entered judgment as a matter of law for the Department based on a novel procedure the court devised sua sponte. The Department did not file a motion, for summary judgment or otherwise; the court purported to allow “the Department’s memorandum.” Add. 2. The court considered factual materials outside the pleadings, however, and thus in effect granted summary judgment. It is appropriate, therefore, for this Court to apply the standard of review for summary judgment. This Court reviews a grant of summary judgment de novo “to determine whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Juliano v. Simpson, 461 Mass. 527, 529 (2012) (internal quotation omitted). “In considering a motion - 15 - for summary judgment, the court does not pass upon the credibility of witnesses or the weight of the evidence (or) make (its) own decision of facts.” Attorney Gen. v. Bailey, 386 Mass. 367, 370 (1982) (internal quotation omitted). The court’s role is more limited: it should determine only whether a genuine issue of material fact exists. Id. Where, as here, the motion judge denies the nonmoving party’s request under Rule 56(f) for discovery to oppose summary judgment, this Court reviews the denial for abuse of discretion. Alphas Co. v. Kilduff, 72 Mass. App. Ct. 104, 107 (2008). II. The lower court abused its discretion by entering judgment against PETA without permitting any discovery. The lower court abused its discretion by denying PETA any opportunity to take discovery despite allowing the Department to submit factual materials in support of its position. PETA’s Rule 56(f) affidavit, which the court demonstrated did PETA’s not need address to in develop its the opinion, record to adequately oppose summary judgment. JA 118-124. This Court has made clear that summary judgment is strongly disfavored before the completion of discovery. See Hennessey v. Stop & Shop Supermarket - 16 - Co., 65 Mass. App. Ct. 88, 94–95 (2005) (reversing grant of summary judgment where discovery was incomplete and there was at least some prospect that further discovery would yield additional evidence); Cardone v. Boston Reg’l Med. Ctr., Inc., 60 Mass. App. Ct. 179, 189 (2003) (summary judgment inappropriate where record was incomplete and facts were disputed). Public rule. While resolved where, records on as some the cases public are the exception records pleadings, here, no disputes discovery applicability to of can this be is necessary an exemption depends on factual matters outside the pleadings. See, e.g., Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587, 589 & n.7 (2005) (discussing evidence obtained through discovery, including deposition testimony); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 286 (1979) (discussing plaintiff’s use of interrogatories). Discovery is particularly important in cases, like this one, in which the legal issue is a matter of first impression. See Doe v. XYZ, Inc., 75 Mass. App. Ct. 311, 316 (2009) (expressing concern about deciding issue of first impression on uncertain summary judgment record); Brown v. DePuy Spine, Inc., 22 Mass. L. Rptr. 425 (Mass. Super. 2007) (“Where an - 17 - underlying question of law is subject to doubt, the preferable practice is to decide the question on a full record of facts.”). Neither claimed the that pleadings motion this case without a judge nor could be factual the Department resolved record: on the indeed, the Department submitted factual materials and the court directed it to submit more. See JA 23-24, 45-49. The motion judge erred select unilaterally by permitting what facts the to Department include in to the record, while denying PETA any opportunity to discover other relevant information in the Department’s possession that might be harmful to the Department’s claims. PETA raised these concerns in the Superior Court, filing an affidavit of counsel setting forth the reasons under Mass. R. Civ. P. 56(f) that the case was not ripe for summary judgment. JA 118-124. The motion judge did not address this request in his opinion. See Add. 1-14. Under Rule 56(f), courts may deny summary judgment or continue the case for further discovery if “it appear[s] from the affidavits of a party opposing the motion that he cannot for reasons stated present - 18 - by affidavit facts essential to justify his opposition.” Mass. R. Civ. P. 56(f); see Alphas Co., Inc. v. Kilduff, 72 Mass. App. Ct. 104, 107-08 (2008). This Court has identified five criteria relevant to this determination: good cause, (quoting “‘authoritativeness, utility, Resolution and materiality.’” Trust Corp. v. timeliness, Id. North at 110 Bridge Assocs., 22 F.3d 1198, 1203-08 (1st Cir. 1994)). In practice, these requirements mean that a request for relief under Rule 56(f) must be: timely and . . . accompanied by an authoritative affidavit based on firsthand knowledge, [and] should show good cause for the failure to have discovered facts sooner; it should set forth a plausible basis for believing that specified facts, susceptible of collection within a reasonable time frame, probably exist; and it should indicate how the emergent facts, if adduced, will influence the outcome of the pending summary judgment motion. Id. (internal quotation omitted). A request that meets all five of these criteria creates “a strong presumption . . . in favor of relief.” Id. at 111. PETA PETA’s met request each of was these timely requirements. since it was First, made in opposition to the Department’s memorandum requesting summary judgment. accompanied by an JA 101. Second, affidavit - 19 - of the request counsel, based was on counsel’s first-hand knowledge of the case. JA 118. Third, PETA had good cause for not having discovered the necessary facts sooner since the Department had moved to PETA’s stay all discovery allowed this discovery requests; motion by in lieu the of court deciding answering effectively summary judgment without requiring the Department to provide discovery. PETA’s request also met the fourth and fifth requirements of utility and materiality. If allowed to conduct discovery, PETA would have been able to learn, for example, how the Department handles the information it has redacted and who has access to the unredacted animal health certificates. JA 121. If the Department did not maintain the confidentiality of the identities of animal researchers and facilities, or if it had documents describing public disclosure of unredacted certificates, these facts would contradict the alleged rationale for the redactions. Indeed, as counsel’s affidavit pointed out, JA 121-22, discovery would have entities identified revealed identified on other, whether on the the individuals certificates non-confidential documents and were or were otherwise known by the public to be engaged in animal research. - 20 - As PETA also stated to the court, discovery would also have revealed whether the Department has information to substantiate the vague and unspecified allegations of violence made in the documents it claims to have relied on. JA 122. This information, or in some cases, the Department’s admission that they had no such reasonableness disclosing information, of the bears directly Department’s unredacted on contention certificates would the that likely jeopardize public safety.7 PETA’s Rule 56(f) affidavit created a strong presumption that discovery should be allowed before going forward with summary judgment. See Alphas Co., 72 Mass. App. Ct. at 111. Yet the motion judge did not 7 Without having to submit to the crucible of discovery, the Department was also allowed to selectively disclose and rely on advice of counsel contained in an internal agency memorandum (proffered by the Department to prove the supposed reasonableness of its belief that the public safety exemption applies). JA 225. It is generally well settled that such selective waiver of attorney-client communications impairs the fact-finding process. Commonwealth v. Funches, 379 Mass. 283, 290 (1979) (noting that a judge should not allow a “witness to edit his own testimony by selective invocation of the privilege, otherwise, the fact-finding process might be imperiled”). Yet, the motion judge permitted the Department to present just such a selectively “edited” case here, without allowing full and fair discovery of all related communications and documents pertaining to the “advice” stated in the Department’s internal memorandum. - 21 - mention the affidavit or PETA’s request for discovery in its Memorandum and Order. The court’s failure to allow PETA to conduct any discovery before deciding summary judgment, or even to address PETA’s request for discovery, was an abuse of discretion that requires the judgment below to be vacated and the case to be remanded to permit discovery. III. The motion judge erred by finding that information identifying individuals and entities in Massachusetts engaged in interstate transport of animals is protected from disclosure under the public safety exemption. A. The Public Records Law. The purpose of the Massachusetts Public Records Law is to give the public broad access to governmental records. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 382–83 (2002); Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 436 (1983). In any court proceeding, “there shall be a presumption that the record sought is public . . .” G. L. c. 66, § 10(c); Cape Cod Times v. Sheriff of Barnstable County, 443 Mass. 587, 592 (2005). “[S]tatutory exemptions must be strictly and narrowly construed.” Globe Newspaper Co. v. District Attorney for Middle Dist., 439 Mass. 374, 380 (2003) - 22 - (quoting General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 801-02 (1999)). To the extent that there is any ambiguity in the language of an exemption, it must be resolved in favor of disclosure. See, e.g., id. at 383. Whether an exemption applies “must be determined on a case-bycase basis.” Worcester Telegram, 436 Mass. at 383-84; see also In re Subpoena Duces Tecum, 445 Mass. 685, 688 (2006). “The custodian of the requested record has the burden applicability Telegram, 436 of of proving, the Mass. with relevant at 383 specificity, exemption.” (citing G. the Worcester L. c. 66, § 10(c), and District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995)). B. Animal health certificates are not the class of records to which the safety exemption applies. within public The motion judge erred by failing to consider, as a threshold matter, whether animal health certificates are “of a type for which [the public safety] exemption has been provided.” See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 65-66 (1976). The language of the public safety exemption shows that they are not. The public safety exemption disclosure: - 23 - protects from 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. G. L. c. 4, § 7, cl. 26(n). The clear import of the statutory text, as shown by the examples buildings, provided, transportation, is and to protect other public infrastructure, as well as security measures in place to protect these physical structures. The motion judge ignored the specific types of records listed conclusion that in the exemption veterinary health in reaching certificates his fall within the scope of “any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, or infrastructure.” principle that Add. when 6. This “general reading words violated follow the specific words in a statutory enumeration, the general words - 24 - are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Banushi v. Dorfman, 438 Mass. 242, 244 (2002). Because records certifying that animals are in good health and free of parasites are not “within the same kind or class” as the specific types of records Appeals of listed Amesbury in the v. statute, Housing Zoning Appeals Bd. Comm., of 457 Mass. 748, 758 (2010), the court erred in finding that the exemption applied to the certificates.8 C. The court erred by according the Department’s determination a “heightened level of deference,” which is unwarranted by the language of the exemption The public safety exemption protects records the disclosure of which “in the reasonable judgment of the record custodian. . . is likely to jeopardize public safety.” G. L. c. 4, § 7, cl. 26(n). The court found that this language “invoke[s] a heightened level of subjectivity in the application of the exemption,” Add. 6, and indicates that “the legislature intended to imbue a heightened level 8 of deference” to the The certificates are issued by out-of-state veterinarians who confirm that the animals are healthy, free of symptoms of infectious or transmissible disease, and free of parasites. See 321 Code Mass. Regs. § 2.15(11) (2015); see also, e.g., JA 286-406 (examples of unredacted certificates). - 25 - custodian’s determination that the public safety exemption applied. Id. In reaching this conclusion, the motion judge turned these terms on their head. The plain meaning of the terms “reasonable judgment” and “likely to jeopardize public safety” requires that courts review the judgment of the custodian by an objective standard, and that the public safety risk must be more than speculative. There deferential is nothing about the inherently phrase “subjective” “reasonable or judgment.” Indeed, determining the “reasonableness” of a person’s judgment is routinely measured by an objective test. See, e.g., Riley v. Davison Const. Co., Inc., 381 Mass. 432, 436 (1980) (in tort cases, the question whether an reasonable individual man” is exercised governed by “judgment an of a objective—not subjective—standard); Pastan v. Pastan, 378 Mass. 148, 154 (1979) (a trustee is “is held by the law to the exercise of an honest, objective judgment, which in practice will mean a reasonable judgment corresponding to reality. . .”). In the context of the public safety exemption, the inclusion of the term reasonable indicates that - 26 - the court reviewing the judgment of the record custodian must consider not only the facts relied on by the custodian, but also any other facts that bear on the reasonableness of his or her conclusion that disclosure presents a likely safety risk. The record custodian’s process conclusion is or good faith irrelevant. The in reaching proceedings this below underscore the appropriateness of this view, as the Department submitted, and the court relied on, factual materials that the Department had not relied on in reaching its judgment that the exemption applied. See Add. 7-8. Consideration appropriate only under of the such objective materials standard is that PETA argues for, since no deference should be given to a subjective judgment that the Department does not claim to have made. The term likely also does not support giving deference to the record custodian, as the court held. Because all inferences in public records exemptions must be drawn in favor of disclosure, see Globe Newspaper Co. v. District Attorney for Middle Dist., 439 Mass. 374, 383 (2003), any inference to be drawn from the use of the word “likely” would be the opposite of that drawn by the motion judge. By adding - 27 - the qualifier likely, the legislature intended to emphasize that an agency’s subjective belief about the existence of a risk -- without demonstrating an actual likelihood of that risk -- exemption. For example, in 438 Mass. 274, undefined term 276 to be particular facts in the SJC another expected and not satisfy the Commonwealth v. Boucher, (2002), likely “reasonably would in construed statute the context circumstances at to the mean of the hand.”9 Similarly, by inserting the word likely in the public safety exemption, the legislature signaled its intent to ensure that an asserted public safety threat be real, not speculative. The term “likely” is akin to the term “probably” used in another Public Exemption (f) materials which “would of effective possibility shields Records from Law disclosure probably law so exemption. investigatory prejudice enforcement . . the . .” G. L. c. 4, § 7, cl. 26(f). Yet, courts have never 9 The SJC reached this definition of likely in accordance with its often-repeated instruction that “[w]here a statutory term is undefined, it must be understood in accordance with its generally accepted plain meaning.” Id. (citing Commonwealth v. Brown, 431 Mass. 772, 775 (2000) and Commonwealth v. Campbell, 415 Mass. 697, 700 (1993)). - 28 - applied a different standard of review or indicated in any way that by inserting the word “probably,” the legislature intended to imbue exemption (f) with heightened level of subjectivity or deference. a See, e.g., Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 383 (2002) (applying the customary burden of proof applicable to all other exemptions); District Attorney for Norfolk Dist. v. Flatley, 419 Mass. 507, 512 (1995) (same). The motion legislative judge intent to also erred relax the by inferring standard of a review applied by courts under G. L. c. 66, § 10(c), from the fact that “the public safety exemption was passed into law in 2002, the year after the September 11 attacks in New York.” Add. 6. This assumes too much. Merely because the exemption is legislature necessary, it determined does not that follow a new that a lower standard of review for the exemption is also necessary. The creation of the public safety exemption indicates only that the legislature deemed one necessary. Had the legislature intended to effect a radical change to the well-established standard of review in public records cases, it would have said so expressly. The court erred by nevertheless inferring - 29 - such a radical change. Cf. Commonwealth v. Burke, 390 Mass. 480, 486 (1983) (“It is not to be lightly supposed that radical changes in the law were intended where not plainly expressed.”) (internal quotation omitted). Finally, the motion judge’s interpretation of the public safety exemption also fails to comport with the statutory context in which the exemption arises, and which was left untouched by its insertion. Under the statute, “in any court proceeding pursuant to [G. L. c. 66, § 10(b)] there shall be a presumption that the record sought is public, and the burden shall be upon the custodian to prove with specificity the exemption which applies.” G. L. c. 66, § 10(c)(emphasis added). This presumption and assignment of burden, which apply in actions under the public safety exemption no less than any other exemption, are incompatible with the presumption of deference to the government that the motion judge created. The statutory presumption that records are assertion public that also courts refutes must the give motion deference judge’s to the Supervisor of Records. Indeed, the statute explicitly states that the existence of the administrative remedy does not “in any way limit - 30 - the availability of judicial remedies otherwise available to any person requesting a public record.” G. L. c. 66, § 10(b). D. The motion judge erred by resolving disputed facts regarding the likelihood of a claimed safety risk in a “trial by affidavits” The lower court erred by deciding contested issues of fact on summary judgment rather than merely identifying them. Even without the opportunity to take any discovery, PETA submitted evidence that refuted the factual assertions underlying the Department’s claim that the redacted information was subject to the public safety resolving exemption. these disputed The motion issues judge in a erred “trial by by affidavits.” Henshaw v. Cabeceiras, 14 Mass. App. Ct. 225, 229 (1982) (citations and internal quotation marks omitted); see also Attorney Gen. v. Bailey, 386 Mass. 367, 370 (1982) (“[T]he court does not pass upon the credibility evidence (or) of make witnesses (its) own or the weight decision of of the facts.”) (internal quotation omitted). Based on “the record compiled by the Department,” Add. 8, the court made the factual determination that disclosing the names and facilities on the certificates was likely to jeopardize public safety. Id. The court found that it was “clear . . . that the - 31 - information redacted on the health certificates would be of the type that could assist an individual or organization in executing an act of criminality.” Id. The court reached its conclusion that disclosure presented a safety risk by adopting the Department’s view of the evidence. In particular, the court found that the VHA “supplemental memorandum, evidence” and about the past Department’s incidents of violence, demonstrated such a risk despite contrary evidence submitted by PETA.10 Add. 8. 1. A factual dispute existed about whether the VHA memorandum justified the Department’s redactions. The lower court found the Department’s redactions justified by a memorandum of the federal Veterans Health Administration directing VHA officials not to release animal information research. about PETA VHA personnel submitted 10 evidence engaged to in refute The Department also claimed support for its redactions from its own internal legal memorandum and a past decision of the Supervisor of Public Records. JA 23-24, 223-27. The motion judge did not rely on these materials in his opinion. In any event, these two selectively disclosed documents merely parrot the Department’s conclusion that the public safety exemption applies, without furnishing evidence as to validity of that conclusion. Moreover, it would make no sense to permit an agency to “prove” the applicability of the exemption by its own attorney’s say-so; doing so would render the scope of the exemption virtually limitless. - 32 - this memorandum, thereby creating an issue of fact that was improper for the court to resolve. The VHA memorandum relies on the federal Freedom of Information Act (“FOIA”) privacy exemption and the federal deliberative process privilege as grounds for withholding information about VHA personnel engaged in animal research. JA 218-20. The VHA memorandum refers to reports of attacks on animal researchers and their families, but it does not identify sources of those reports, or provide any basis from which their credibility and veracity can be determined. The value of the VHA memorandum in assessing the safety risk certificates of pales disclosing in unredacted comparison to the health far more compelling evidence PETA submitted showing how another agency in inspection Massachusetts certificates treats under primate health Massachusetts’ Public Records Law. The Massachusetts Department of Fish and Game’s Division of Fisheries and Wildlife, the state agency ordinarily tasked with maintaining animal health certificates, discloses them publicly without redaction. JA 126, ¶ unredacted certificates, 9; JA 286-406 revealing the (numerous names and addresses of individuals and entities involved in the - 33 - transport of animals, produced to PETA by the Division); see also 321 Code Mass. Regs. § 2.15(11) (2015) (Department establishing of Fish requirement and of Game regulations veterinary health inspections for imported animals). The disclosures of the Massachusetts Division of Fisheries and Wildlife are consistent with the manner in which other federal agencies that regulate and monitor animal research treat this same information. See, e.g., JA 469-70 (U.S. Department of Agriculture website listing addresses of several non-human primate research facilities); JA 471-98 (National Institutes of Health website listing by state and region addresses and contact information for various animal research facilities). submitted by animal further PETA, researchers showed Voluminous including and that other those facilities information in of materials pertaining to Massachusetts, the type the Department would characterize as secret and private is readily available to the public. See, e.g., JA 286-406 (unredacted certificates); 522-27 (American Society of Laboratory animal Animal research, information, at Practitioners including address Massachusetts - 34 - website describing and contact Institute of Technology); 589 (contact information, including animal research laboratory address, posted on Boston University website). Although survive no summary further evidence judgment, PETA was also required to affirmatively debunked the Department’s claimed need to maintain the secrecy with additional evidence that researchers (JA 568, 598, 601-04), research institutions (JA 471, 522, 589-92), sellers of animals (JA 453-68), and numerous other organizations involved with animal research themselves routinely disclose the type of information that the Department argues is private and would lead to great harm if it were disclosed. JA 567. Research institutions and facilities even advertise and conduct public outreach, tours, and open houses, to publicize their work. JA 615, 668, 671-73. In short, the evidence submitted by PETA created a factual dispute about the Department’s claim that publicly disclosing this same information contained in the health finding certificate out these would “assist” persons’ and criminals in institutions’ identities and locations. Add. 8. The evidence also refutes the claim that these institutions and entities have any expectation in the privacy (or reason to fear - 35 - the disclosure) of information they themselves freely share with the public. The court erred by resolving these disputes in the Department’s favor. 2. A factual dispute existed about whether miscellaneous reports of past crimes by those opposed to animal research justified the Department’s redactions. The court engaged in impermissible fact finding with respect Department evidence to the attached consisted supplemental to its of excerpts evidence memorandum from of law. news the This reports, congressional testimony, a press release, and other documents referring to wide-ranging misdeeds allegedly committed by animal-rights activists. JA 249-84. With one exception, incidents that all of these occurred documents before the referred passage of to the Animal Enterprise Terrorism Act (“AETA”), 18 U.S.C. § 43, in 2006; the other document, a CNN report, referred to incidents before 2008. JA 282. Based on this evidence, and despite countervailing evidence submitted by PETA, the motion judge concluded that the Department met its burden because it has shown that “animal research conducted on non-human primates has been the target of extremist groups and criminal activities throughout the United States.” Add. 10. - 36 - The supplemental evidence shows only that “some” entities who oppose animal research have, at some point in time, “perpetrated acts of criminality and domestic terrorism in support of their opposition.” Add. 8. But buildings the mere involved fact with that animal some people research or activities have been victims of crime cannot possibly bring all references accurately, to such people people or or buildings buildings (or involved with more the housing and transporting of animals allegedly destined for research) within the scope of the exemption. This would be tantamount to arguing that because some schools or shopping malls or cinemas have been targets of criminal activities at some time in the past, all names and addresses of schools, shopping malls and cinemas, and the names and business telephone numbers of the individuals working at those facilities must be redacted from public records regardless of how remote in time, circumstance, or place they are to prior or threatened instances of criminal activity. Since no profession, industry, completely immune reasoning, if or from geographic crime, accepted, would the location motion allow is judge’s Commonwealth officials to throw a blanket of secrecy over virtually - 37 - any conduct they wish to keep from public scrutiny, thereby eviscerating the narrow scope of exemptions to the Public Records Law. At most, the record reflects that there are disputed factual issues as to whether (and to what extent) isolated prior incidents against animal researchers accurately reflect the current state of affairs in the Commonwealth. The court erred by resolving these issues upon a trial by affidavits.11 The fact that there were isolated reported incidents in the past, and even convictions of a few people who oppose research on animals, cannot possibly suffice to impose a blanket gag order regarding all information related in any way to animal research. Moreover, none of the Department’s evidence showed any threats to any 11 Among other things, the court impermissibly accepted the Department’s evidence over PETA’s and drew inferences against PETA and in favor of the Department in resolving disputed issues regarding whether isolated criminal activities that occurred years ago accurately reflect a present risk of harm -or whether, as PETA’s evidence tended to show, to the extent a risk may have existed in the past, it has long been abated. For example, the passage of AETA, while intended to deter and punish crime associated with animal enterprises, does not inexorably lead to the conclusion that all names and addresses of anyone associated with such enterprises must henceforth be redacted from public records. Viewed in the light favorable to PETA, one could easily infer that AETA abated any perceived risk that may have existed a decade ago, before its enactment in 2006. - 38 - entities or transporting individuals or housing associated research merely animals, or with with inspecting the transported animals to ensure they have no parasites. As the Department conceded in response to PETA’s other public records request, it does not have any records reflecting any risks posed to persons who are merely transporting of involved primates. with JA the 216-17. housing and Nor the did Department come forward with such evidence after the fact. There simply is no evidence in the record -- let alone undisputed evidence -- that merely because unrelated crimes were committed at some remote point and place in time against researchers who experiment on animals, there is somehow a “likely” risk to public safety by disclosing the already widely available professional contact information of persons associated with transporting, housing, and inspecting primates. The motion judge erred in making such an unwarranted epistemological leap. The motion judge also erred by failing to draw the required favorable inferences from the fact that persons routinely and entities disclose involved their in animal identities and research business telephone numbers, which is plainly inconsistent with - 39 - the notion that these individuals have reason to fear the disclosure motion judge of such information. acknowledged that the Although the categories of information at issue are available to the public, from which it can be determined which researchers have performed research on animals and where such research takes place, Add. 10-11, he concluded that this “does not obviate the Department’s obligation to protect the information likely to . . . that jeopardize it reasonably public safety.” believes Add. 11. is Such reasoning is tautological; it fails to explain why the Department’s belief is reasonable. The inference to which PETA was entitled at the summary judgment stage would lead unreasonable to for the the opposite conclusion: Department to it believe was that criminal activities could be facilitated by telling these imagined would-be criminals what they already know, or could easily determine, from other sources. For similar reasons, the motion judge erred by declaring that “it is clear to the court that the information redacted from the health certificates would be of the type that could assist an individual or organization in executing an act of criminality, as the information could identify persons, facilities, or - 40 - the locations of the persons or facilities.” Add. 8. However, the evidence PETA submitted shows that disclosing the unredacted certificates would be of no “assistance” these to persons disclosed anyone; and by the names facilities regulatory are and locations already agencies and of routinely by the researchers and research institutions themselves. IV. The motion judge erred in privacy exemption applies. concluding that the The Department initially raised only the public safety exemption as a basis for redacting identifying information from the veterinary health certificates. JA 16, 216-217. In its Memorandum in Support of Summary Judgment, the Department argued for the first time that the privacy exemption, G. L. c. 4, § 7, cl. 26(c), provides an alternative basis for redacting the veterinary health certificates at issue. JA 95. The motion judge concluded that, because the certificates relate to animal research, the privacy exemption applies to any names, addresses, and telephone numbers included in them. Add. 13. This was error. The privacy exemption excludes the following from the definition of public records: Personnel and medical files or information; also any other materials or data relating to - 41 - a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. G. L. c. 4, § 7, cl. 26(c). Other than personnel or medical files, the exemption is intended to protect “intimate details of a highly personal nature.” Georgiou v. Comm’r of the Dept. of Indus. Accidents, 67 Mass. App. Ct. 428, protected information legitimacy of (2006).12 433 include children, Examples “marital identity of of status, fathers of children, medical condition, welfare payments, alcohol consumption, family fights, and reputation.” Id. In determining whether privacy interests are implicated, courts consider (i) whether disclosure would “result in personal embarrassment to an individual of normal sensibilities;” contain (ii) “‘intimate whether details the of materials a highly sought personal nature;’” and (iii) whether “the same information is available from other sources.” Globe Newspaper Co. v. Police Comm’r of Boston, 419 Mass. 852, 858 (1995) (collecting cases). support applicability the None of of these the considerations privacy exemption here. 12 There is no claim that the redacted information on the health certificates is “personnel or medical files or information.” - 42 - First, there is no evidence that recipients and sellers of animals or the veterinarians who inspect those animals will suffer embarrassment as a result of the disclosure of their names and business contact information. Indeed, the record supports an inference to the contrary, since the Division of Fisheries and Wildlife routinely discloses this information, see JA 287-468, and there is no evidence of any resulting embarrassment or other adverse consequences to anyone. Second, names, addresses, and telephone numbers (especially those of businesses) are not private at all, let alone “intimate details” of a “highly personal nature.” See, e.g., Pottle v. Sch. Comm. of Braintree, 395 Mass. 861, 864 (1985) (“We hold that public school employees’ names and home addresses do not fall within the [privacy] exemption”); Cape Cod Times v. Sheriff of Barnstable County, 443 Mass. 587, 594-95 (2005) (holding that names and addresses of reserve deputy sheriffs are not within the scope of the privacy exemption). Third, as demonstrated by the exhibits PETA submitted in opposition to summary judgment, JA 287761, the people names and involved in business the sale, - 43 - contact information transport, of veterinary inspection, available and research from information many would of animals sources. not are publicly Disclosure invade these of this individuals’ privacy. See, e.g., Pottle, 395 Mass. at 866 (stating “we do not employees’ believe names and that disclosure addresses of would school invade the privacy” of those employees, in light of the fact that their names available and from addresses telephone were already directories publicly and other sources). In concluding that the privacy exemption did apply, the motion judge ignored the cases cited above. The judge instead relied on a federal case involving home addresses and the privacy interest associated with “the ability to retreat to the seclusion of one’s home.” Add. 12 (citing Federal Labor Relations Auth. v. U.S. Dep’t of the Navy, 941 F.2d 49 (1st Cir. 1991)). Finally, “balancing the test motion judge erred between any claimed in applying invasion a of privacy and the interest of the public in disclosure.” Add. 11 (quoting Globe Newspaper Co. v. Police Comm’r of Boston, 419 Mass. 852, 858 (1995)). The balancing test discussed in Globe Newspaper applies only where a - 44 - privacy interest is implicated. Where, as here, the information is not private to begin with, there is no balance to presuming be that information struck. The publicly implicated motion available privacy judge erred by business contact interests, thereby shifting the burden to PETA to prove that the public interest in disclosure substantially outweighed this concern. Because the veterinary health certificates at issue in this case do not involve any home addresses, and because the precedent of this Court and the Supreme Judicial Court make clear that professional contact information is not subject to the privacy exemption, the motion judge’s order on this point must be vacated. CONCLUSION For vacate the the foregoing judgment reasons, below13 and this Court remand the should case to permit development of a complete factual record. 13 This appeal concerns only Items 1 and 3 of the court’s judgment. See JA 201. Item 2 of the judgment states, “The names, addresses, and telephone numbers of persons and facilities located outside of Massachusetts, contained in the redacted health certificates are not within the public safety exemption, G.L. c. 4, sec. 7, cl. 26(n).” JA 200. Neither party has appealed this portion of the court’s - 45 - RESPECTFULLY SUBMITTED, For the Plaintiff-Appellant, By its attorneys, David Milton, BBO#668908 Drew Glassroth, BBO# 681725 Law Offices of Howard Friedman, PC 90 Canal Street, 5th Floor Boston, MA 02114 617-742-4100 dmilton@civil-rights-law.com dglassroth@civil-rights-law.com Martina Bernstein, admitted pro hac vice PETA Foundation 1536 16th Street, N.W. Washington, DC 20036 202-483-7382 martinab@petaf.org April 15, 2016 decision. - 46 - Mass. R. App. P. 16(k) Certification I hereby certify that this brief complies with the rules of court pertaining to the filing of briefs, including, but not limited to, Mass. R. App. P. 16(a)(6), 16(e), 16(f), 16(h), 18, and 20. David Milton Certificate of Service I hereby certify under the pains and penalties of perjury that on this 15th day of April, 2016, I caused true copies of the foregoing document to be served by first class mail and electronic mail on the following counsel for Defendants: Amy Spector Assistant Attorney General Office of the Attorney General One Ashburton Place Boston, MA 02108 amy.spector@state.ma.us David Milton - 47 - ADDENDUM - . . 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 Add. 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 Add. 002 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. Add'. 003 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 - Add. 004 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, ?Add. 005 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 Add. 006 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 . Add, 007 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.? - Add. 008 1.. 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 Add. 009 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 Add. 010? 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 Add. 011 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. Add.o12 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). i . Add. 013 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 Add. 014 7. Definitions of statutory terms; statutory construction, MA ST 4 7 KeyCite Yellow Flag - Negative Treatment Proposed Legislation Massachusetts General Laws Annotated Part 1. Administration of the Government (Ch. 1-182) Title I. Jurisdiction and Emblems of the Commonwealth, the General Court, Statutes and Public Documents (Ch. 1-5) Chapter 4. Statutes (Refs Annos) M.G.L.A. 4 7 7. De?nitions of statutory terms; statutory construction Effective: September 9, 2014 Currentness In construing statutes the following words shall have the meanings herein given, unless a contrary intention clearly appears: First, ?Aldermen?, ?board of aldermen?, ?mayor and aldermen?, ?city council? or ?mayor? shall, in a city which has no such body or officer, mean the board or of?cer having like powers or duties. Second, ?Annual meeting?, when applied to towns, shall mean the annual meeting required by law to be held in the month of February, March or April. Second A, ?Appointing authority?, when used in connection with the operation of municipal govemments shall include the mayor of a city and the board of selectmen of a town unless some other local of?ce is designated as the appointing authority under the provisions of a local charter. Third, ?Assessor? shall include any person chosen or appointed in accordance with law to perform the duties of an assessor. Third A, ?Board of selectmen?, when used in connection with the operation of municipal governments shall include any other local of?ce which is performing the duties of a board of selectmen, in whole or in part, under the provisions of a local charter. There is no clause Fourth.]> Fifth, ?Charter?, when used in connection with the operation of city and town govermnent shall include a written instrument adopted, amended or revised pursuant to the provisions of chapter forty-three which establishes and de?nes the structure of city and town government for a particular community and which may create local of?ces, and distribute powers, duties and responsibilities among local of?ces and which may establish and de?ne certain procedures to be followed by the city or town govermnent. Special laws enacted by the general court applicable only to one city or town shall be deemed to have the force of a charter and may be amended, repealed and revised in accordance with the provisions of chapter forty-three unless any such special law contains a speci?c prohibition against such action. Fifth A, ?Chief administrative of?cer?, when used in connection with the operation of municipal governments, shall include the mayor of a city and the board of selectmen in a town unless some other local of?ce is designated to be the chief administrative of?cer under the provisions of a local charter. WESTLAW T: .Z Add 015 7. Definitions of statutory terms; statutory construction, MA ST 4 7 Fifth B. ?Chief executive of?cer?. when used in comlection with the operation of municipal govemments shall include the mayor in a city and the board of selectmen in a town unless some other municipal of?ce is designated to be the chief executive of?cer under the provisions of a local charter. Sixth. ?City solicitor? shall include the head of the legal department of a city or town. Sixth A. ?Cotenninous?. shall mean. when applied to the term of of?ce of a person appointed by the governor. the period from the date of appointment and quali?cation to the end of the term of said govemor: provided that such person shall serve until his successor is appointed and quali?ed: and provided. further. that the govemor may remove such person at any time. subject however to the condition that if such person receives notice of the termination of his appointment he shall have the right. at his request. to a hearing within thirty days from receipt of such notice at which hearing the govemor shall show cause for such removal. and that during the period following receipt of such notice and until ?nal determination said person shall receive his usual compensation but shall be deemed suspended from his of?ce. Seventh. ?District?. when applied to courts or the justices or other of?cials thereof. shall include municipal. Eighth. ?Dukes?. ?Dukes county? or ?county of Dukes? shall mean the county of Dukes county. Ninth. ?Fiscal year?. when used with reference to any of the of?ces. departments. boards. commissions. institutions or undertakings of the commonwealth. shall mean the year beginning with July ?rst and ending with the following June thirtieth. Tenth. ?Illegal gaming.? a banking or percentage game played with cards. dice. tiles or dominoes. or an electronic. electrical or mechanical device or machine for money. property. checks. credit or any representative of value. but excluding: a lottery game conducted by the state lottery commission. under sections 24. 24A and 27 of chapter 10: (ii) a game conducted under chapter 23K: pari-mutuel wagering on horse races under chapters 128A and 128C and greyhound races under said chapter 128C: (iv) a game of bingo conducted under chapter 271: and charitable gaming conducted under said chapter 271. Eleventh. ?Grantor? may include every person from or by whom a freehold estate or interest passes in or by any deed: and ?grantee? may include every person to whom such estate or interest so passes. Twelfth. ?Highway?. ?townway?. ?public way? or ?way? shall include a bridge which is a part thereof. Thirteenth. ?In books?. when used relative to the records of cities and towns. shall not prohibit the making of such records on separate leaves. if such leaves are bound in a permanent book upon the completion of a suf?cient number of them to make an ordinary volume. Fourteenth. ?Inhabitant? may mean a resident in any city or town. There is no clause Fifteenth.]> Sixteenth. ?Issue?. as applied to the descent of estates. shall include all the lawful lineal descendants of the ancestor. Seventeenth. ?Land?. ?lands? and ?real estate? shall include lands. tenements and hereditaments. and all rights thereto and interests therein: and ?recorded?. as applied to plans. deeds or other instruments affecting land. shall. as affecting registered land. mean ?led and registered. Eighteenth. ?Legal holiday? shall include January ?rst. July fourth. November eleventh. and Christmas Day. or the day following when any of said days occurs on Sunday. and the third Monday in January. the third Monday in February. the third Monday in April. the last Monday in May. the ?rst Monday in September. the second Monday in October. and Thanksgiving AV-J Add. 01 6 7. Definitions of statutory terms; statutory construction, MA ST 4 7 Day. ?Legal holiday? shall also include. with respect to Suffolk county only. Evacuation Day. on March seventeenth. and Bunker Hill Day. on June seventeenth. or the day following when said days occur on Sunday: provided. however. that all state and municipal agencies. authorities. quasi-public entities or other offices located in Suffolk county shall be open for business and appropriately staffed on Evacuation Day. on March seventeenth. and Bunker Hill Day. on June seventeenth. and that section forty-?ve of chapter one hundred and forty-nine shall not apply to Evacuation Day. on March seventeenth. and Bunker Hill Day. on June seventeenth. or the day following when said days occur on Sunday. Eighteenth A. ?Commemoration day? shall include March ?fteenth. in honor of Peter Francisco day. May twentieth. in honor of General Marquis de Lafayette and May twenty-ninth. in honor of the birthday of President John F. Kemledy. The governor shall issue a proclamation in connection with each such commemoration day. Eighteenth B. ?Legislative body?. when used in connection with the operation of municipal governments shall include that agency of the municipal government which is empowered to enact ordinances or by-laws. adopt an annual budget and other spending authorizations. loan orders. bond authorizations and other ?nancial matters and whether styled a city council. board of aldermen. town council. town meeting or by any other title. Nineteenth. ?Month? shall mean a calendar month. except that. when used in a statute providing for punishment by imprisonment. one ?mont or a multiple thereof shall mean a period of thirty days or the corresponding multiple thereof; and ?year?. a calendar year. Nineteenth A. ?Municipality? shall mean a city or town. Twentieth. ?Net indebtedness? shall mean the indebtedness of a county. city. town or district. omitting debts created for supplying the inhabitants with water and other debts exempted from the operation of the law limiting their indebtedness. and deducting the amount of sinking funds available for the payment of the indebtedness included. Twenty-?rst. ?Oath? shall include af?rmation in cases where by law an af?rmation may be substituted for an oath. Twenty-second. ?Ordinance?. as applied to cities. shall be synonymous with by?law. Twenty-third. ?Person? or ??vhoever? shall include corporations. societies. associations and partnerships. Twerlty-fom'th. ?Place? may mean a city or town. Twenty-?fth. ?Preceding? or ?following?. used with reference to any section of the statutes. shall mean the section last preceding or next following. unless some other section is expressly designated in such reference. Twenty-sixth. ?Public records? shall mean all books. papers. maps. photographs. recorded tapes. ?nancial statements. statistical tabulations. or other documentary materials or data. regardless of physical form or characteristics. made or received by any of?cer or employee of any agency. executive of?ce. 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. or any person. corporation. association. partnership or other legal entity which receives or expends public for the payment or administration of pensions for any current or former employees of the commonwealth or any political subdivision as de?ned in section 1 of chapter 32. unless such materials or data fall within the following exemptions in that they are: speci?cally or by necessary implication exempted from disclosure by statute: related solely to internal personnel rules and practices of the government unit. provided however. that such records shall be withheld only to the extent that proper performance of necessary govemmental functions requires such withholding: Add. 01 7 7. Definitions of statutory terms; statutory construction, MA ST 4 7 personnel and medical ?les or information: also any other materials or data relating to a speci?cally named individual. the disclosure of which may constitute an unwarranted invasion of personal privacy: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the ?les of the govemmental unit: (1) investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory of?cials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest: trade secrets or conunercial or ?nancial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of con?dentiality: but this subclause shall not apply to information submitted as required by law or as a condition of receiving a governmental contract or other bene?t: proposals and bids to enter into any contract or agreement until the time for the opening of bids in the case of proposals or bids to be opened publicly. and until the time for the receipt of bids or proposals has expired in all other cases: and inter- agency or intra-agency communications made in connection with an evaluation process for reviewing bids or proposals. prior to a decision to enter into negotiations with or to award a contract to. a particular person: appraisals of real property acquired or to be acquired until (1) a ?nal agreement is entered into: or (2) any litigation relative to such appraisal has been terminated; or (3) the time within which to commence such litigation has expired: the names and addresses of any persons contained in. or referred to in. any applications for any licenses to carry or possess ?rearms issued pursuant to chapter one hundred and forty or any ?rearms identi?cation cards issued pursuant to said chapter one hundred and forty and the names and addresses on sales or transfers of any ?rearms. ri?es. shotguns. or machine guns or ammunition therefor. as de?ned in said chapter one hundred and forty and the names and addresses on said licenses or cards: There is no subclause (I) questions and answers. scoring keys and sheets and other materials used to develop. administer or score a test. examination or assessment instrument: provided. however. that such materials are intended to be used for another test. examination or assessment instnunent: contracts for hospital or related health care services between any hospital. clinic or other health care facility operated by a unit of state. county or municipal govemment and (ii) a health maintenance organization arrangement approved under chapter one hundred and seventy-six I. a nonpro?t hospital service corporation or medical service corporation organized pursuant to chapter one hundred and seventy-six A and chapter one hundred and seventy-six B. respectively. a health insurance corporation licensed under chapter one hundred and seventy-?ve or any legal entity that is self insured and provides health care bene?ts to its employees. (11) records. including. but not limited to. blueprints. plans. policies. procedures and schematic drawings. which relate to internal layout and structural elements. secm?ity 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 the disclosure of which. in the reasonable judgment of the record custodian. AV-J Add. 01 8 7. Definitions of statutory terms; statutory construction, MA ST 4 7 subject to review by the supervisor of public records under subsection of section 10 of chapter 66. is likely to jeopardize public safety. (0) the home address and home telephone number of an employee of the judicial branch. an unelected employee of the general court. an agency. executive of?ce. department. board. commission. bureau. division or authority of the commonwealth. or of a political subdivision thereof or of an authority established by the general court to serve a public purpose. in the custody of a govemment agency which maintains records identifying persons as falling within those categories: provided that the information may be disclosed to an employee organization under chapter 150E. a nonpro?t organization for retired public employees under chapter 180. or a criminal justice agency as de?ned in section 167 of chapter 6. the name. home address and home telephone number of a family member of a commonwealth employee. contained in a record in the custody of a govemment agency which maintains records identifying persons as falling within the categories listed in subclause Adoption contact information and indices therefore of the adoption contact registry established by section 31 of chapter 46. Information and records acquired under chapter 18C by the of?ce of the child advocate. trade secrets or con?dential. competitively-sensitive or other proprietary information provided in the course of activities conducted by a governmental body as an energy supplier under a license granted by the department of public utilities pursuant to section 1F of chapter 164. in the course of activities conducted as a municipal aggregator under section 134 of said chapter 164 or in the course of activities conducted by a cooperative consisting of governmental entities organized pursuant to section 136 of said chapter 164. when such governmental body. municipal aggregator or cooperative determines that such disclosure will adversely affect its ability to conduct business in relation to other entities making. selling or distributing electric power and energy; provided. however. that this subclause shall not exempt a public entity from disclosure required of a private entity so licensed. statements ?led under section 20C of chapter 32. trade secrets or other proprietary information of the University of Massachusetts. including trade secrets or proprietary information provided to the University by research sponsors or private concerns. Any person denied access to public records may pursue the remedy provided for in section ten of chapter sixty-six. Twenty-seventh. ?Salary? shall mean annual salary. Twenty-eighth. ?Savings banks? shall include institutions for savings. There is no clause Thirtieth. shall mean a person who is liable to be put under guardianship on account of excessive drinking. gaming. idleness or debauchery. Thirty-?rst. ?State?. when applied to the different parts of the United States. shall extend to and include the District of Columbia and the several territories: and the words ?United States? shall include said district and territories. Thirty-second. ?State auditor? and ?state secretary? shall mean respectively the auditor of the commonwealth and the secretary of the cormnonwealth. ?State treasurer? or ?treasurer of the commonwealth? shall mean the treasurer and receiver general as Aw Add. 01 9 7. Definitions of statutory terms; statutory construction, MA ST 4 7 used in the constitution of the commonwealth. and shall have the same meaning in all contracts. instruments. securities and other documents. Thirty-third. ?Swear? shall include a?irm in cases in which an af?rmation may be substituted for an oath. When applied to public of?cers who are required by the constitution to take oaths therein prescribed. it shall refer to those oaths: and when applied to any other of?cer it shall mean sworn to the faithful performance of his of?cial duties. Thirty-forn?th. ?Town?. when applied to towns or of?cers or employees thereof. shall include city. Thirty-?fth. ?Valuation?. as applied to a town. shall mean the valuation of such town as determined by the last preceding apportionment made for the purposes of the state tax. Thirty-sixth. ?Water district? shall include water supply district. Thirty-seventh. ?Will? shall include codicils. Thirty-eighth. ?Written? and ?in writing? shall include printing. engraving. lithographing and any other mode of representing words and letters: but if the written signature of a person is required by law. it shall always be his own handwriting or. if he is unable to write. his mark. Thirty-ninth. ?Annual election?. as applied to municipal elections in cities holding such elections biennially. shall mean biennial election. Fortieth. ?Surety? or ?Sureties?. when used with reference to a ?delity bond of an of?cer or employee of a county. city. town or district. shall mean a surety company authorized to transact business in the cormnonwealth. Forty-?rst. ?Population?. when used in cormection with the number of inhabitants of a county. city. town or district. shall mean the population as determined by the last preceding national census. There is no clause Forty-third. ?Veteran? shall mean (1) any person. whose last discharge or release from his wartime service as de?ned herein. was under honorable conditions and who served in the army. navy. marine corps. coast guard. or air force of the United States. or on full time national guard duty under Titles 10 or 32 of the United States Code or under sections 38. 40 and 41 of chapter 33 for not less than 90 days active service. at least 1 day of which was for wartime service: provided. however. than any person who so served in wartime and was awarded a service-connected disability or a Purple Heart. or who died in such service under conditions other than dishonorable. shall be deemed to be a veteran notwithstanding his failure to complete 90 days of active service: (2) a member of the American Merchant Marine who served in armed con?ict between December 7. 1941 and December 31. 1946. and who has received honorable discharges from the United States Coast Guard. Army. or Navy: (3) any person whose last discharge from active service was under honorable conditions. and who served in the army. navy. marine corps. coast guard. or air force of the United States for not less than 180 days active service: provided. however. that any person who so served and was awarded a service-connected disability or who died in such service under conditions other than dishonorable. shall be deemed to be a veteran notwithstanding his failure to complete 180 days of active service. ?Wartime service? shall mean service performed by a ?Spanish War veteran?. a ?World War I veteran?. a ?World War veteran?. a ?Korean veteran?. a ?Vietnam veteran?. a ?Lebanese peace keeping force veteran?. a ?Grenada rescue mission veteran?. a ?Panamanian intervention force veteran?. a ?Persian Gulf veteran?. or a member of the as de?ned in this clause during any of the periods of time described herein or for which such medals described below are awarded. Aw Add. 020 7. Definitions of statutory terms; statutory construction, MA ST 4 7 ?Spanish War veteran? shall mean any veteran who performed such wartime service between February ?fteenth. eighteen hundred and ninety-eight and July fourth. nineteen hundred and two. ?World War I veteran? shall mean any veteran who performed such wartime service between April sixth. nineteen hundred and seventeen and November eleventh. nineteen hundred and eighteen. or has been awarded the World War I Victory Medal. or performed such service between March twenty-?fth. nineteen hundred and seventeen and August ?fth. nineteen hundred and seventeen. as a Massachusetts National Guardsman. ?World War II veteran? shall mean any veteran who performed such wartime service between September 16. 1940 and July 25. 1947. and was awarded a World War Victory Medal. except that for the purposes of chapter 31 it shall mean all active service between the dates of September 16. 1940 and June 25. 1950. ?Korean veteran? shall mean any veteran who performed such wartime service between June twenty-?fth. nineteen hundred and ?fty and January thirty-?rst. nineteen hundred and ?fty-?ve. both dates inclusive. and any person who has received the Korea Defense Service Medal as established in the Bob Stump National Defense Authorization Act for ?scal year 2003. ?Korean emergency? shall mean the period between June twenty-?fth. nineteen hundred and ?fty and January thirty-?rst. nineteen hundred and ?fty-?ve. both dates inclusive. ?Vietnam veteran? shall mean (1) any person who performed such wartime service during the period commencing August ?fth. nineteen hundred and sixty-four and ending on May seventh. nineteen hundred and seventy-?ve. both dates inclusive. or (2) any person who served at least one hundred and eighty days of active service in the armed forces of the United States during the period between February ?rst. nineteen hundred and ?fty-?ve and August fourth. nineteen hundred and sixty-four: provided. however. that for the purposes of the application of the provisions of chapter thirty-one. it shall also include all active service between the dates May seventh. nineteen hundred and seventy-?ve and June fourth. nineteen hundred and seventy-six: and provided. further. that any such person who served in said armed forces during said period and was awarded a service- connected disability or a Purple Heart. or who died in said service under conditions other than dishonorable. shall be deemed to be a veteran notwithstanding his failure to complete one hundred and eighty days of active service. ?Lebanese peace keeping force veteran? shall mean any person who performed such wartime service and received a campaign medal for such service during the period commencing August twenty-?fth. nineteen hundred and eighty-two and ending when the President of the United States shall have withdrawn armed forces from the country of Lebanon. ?Grenada rescue mission veteran? shall mean any person who performed such wartime service and received a campaign medal for such service during the period commencing October twenty-?fth. nineteen hundred and eighty-three to December ?fteenth. nineteen hundred and eighty-three. inclusive. ?Panamanian intervention force veteran? shall mean any person who performed such wartime service and received a campaign medal for such service during the period commencing December twentieth. nineteen hundred and eighty-nine and ending January thirty-?rst. nineteen hundred and ninety. ?Persian Gulf veteran? shall mean any person who performed such wartime service during the period cormnencing August second. nineteen hundred and ninety and ending on a date to be determined by presidential proclamation or executive order and concurrent resolution of the Congress of the United States. shall mean any woman who was discharged and so served in any corps or unit of the United States established for the purpose of enabling women to serve with. or as auxiliary to. the armed forces of the United States and such woman shall be deemed to be a veteran. tuba: Add. 021 7. Definitions of statutory terms; statutory construction, MA ST 4 7 None of the following shall be deemed to be a ?veteran?: Any person who at the time of entering into the armed forces of the United States had declared his intention to become a subject or citizen of the United States and withdrew his intention under the provisions of the act of Congress approved July ninth. nineteen hundred and eighteen. Any person who was discharged from the said armed forces on his own application or solicitation by reason of his being an enemy alien. Any person who has been proved guilty of wilful desertion. Any person whose only service in the armed forces of the United States consists of his service as a member of the coast guard auxiliary or as a temporary member of the coast guard reserve. or both. Any person whose last discharge or release from the armed forces is dishonorable. ?Armed forces? shall include army. navy. marine corps. air force and coast guard. ?Active service in the armed forces?. as used in this clause shall not include active duty for training in the army national guard or air national guard or active duty for training as a reservist in the armed forces of the United States. Forty-fourth. ?Registered mail?. when used with reference to the sending of notice or of any article having no intrinsic value shall include certi?ed mail. Forty-?fth. ?Pledge?. ?Mortgage?. ?Conditional Sale?. ?Lien?. ?Assignment? and like terms. when used in referring to a security interest in personal property shall include a corresponding type of security interest under chapter one hundred and six of the General Laws. the Uniform Commercial Code. Forty-sixth. ?Forester?. ?state forester? and ?state ?re warden? shall mean the cormnissioner of environmental management or his designee. Forty-seventh. ?Fire ?ghter?. ??reman? or ?permanent member of a ?re department?. shall include the chief or other uniformed of?cer performing similar duties. however entitled. and all other ?re of?cers of a ?re department. including. without limitation. any permanent crash crewman. crash boatrnan. ?re controlman or assistant ?re controhnan employed at the General Edward Lawrence Logan Intemational Airport. members of the 104th ?ghter wing ?re department or members of the Massachusetts military reservation ?re department. Forty-eighth. ?Minor? shall mean any person under eighteen years of age. Forty-ninth. ?Full age? shall mean eighteen years of age or older. Fiftieth. ?Adult? shall mean any person who has attained the age of eighteen. Fifty-?rst. ?Age of majority? shall mean eighteen years of age. Fifty-second. ?Superior court? shall mean the superior court department of the trial court. or a session thereof for holding court. Fifty-third. ?Land court? shall mean the land court department of the trial court. or a session thereof for holding court. Add. 022 7. Definitions of statutory terms; statutory construction, MA ST 4 7 Fifty-fourth. ?Probate court?. ?court of insolvency? or ?probate and insolvency court? shall mean a division of the probate and family court department of the trial court. or a session thereof for holding court. Fifty-?fth. ?Housing court? shall mean a division of the housing court department of the trial court. or a session thereof for holding court. Fifty-sixth. ?District court? or ?municipal court? shall mean a division of the district court department of the trial court. or a session thereof for holding court. except that when the context means something to the contrary. said words shall include the Boston municipal court department. Fifty-seventh. ?Municipal court of the city of Boston? shall mean the Boston municipal court department of the trial court. or a session thereof for holding court. Fifty-eighth. ?Juvenile court? shall mean a division of the juvenile court department of the trial court. or a session thereof for holding court. Fifty-ninth. ?Gender identity? shall mean a person?s gender-related identity. appearance or behavior. whether or not that gender- related identity. appearance or behavior is different from that traditionally associated with the person?s physiology or assigned sex at birth. Gender-related identity may be shown by providing evidence including. but not limited to. medical history. care or treatment of the gender-related identity. consistent and unifonn assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held as part of a person?s core identity; provided. however. that gender-related identity shall not be asserted for any improper purpose. Credits Amended by St.1934. c.2831 St.1935. c. 26; St.1936. c. 180: St.1937. c. 38; St.1938. c.2451 St.1941. c. 91. 1; St.1941. c. 509. 1: St.1945. c. 242. 1: St.1945. c. 637. 1: St.1946. c. 190: St.1948. c. 241: St.1951. c. 215. 1: St.1953. c. 319. 2: St.1954. c. 128. 1: St.1954. c. 627. 1: St.1955. c. 99. l. 2: St.1955. c. 403. 1: St.1955. c. 683: St. 1956. c. 281. 1. 2: St.1957. c. 164. 1: St.1957. c. 765. 3: St.1958. c. 140: St.1958. c. 626. 1: St.1960. c. 299: St.1960. c. 544. 1: St.1960. c. 812. 1; St.1962. c. 427.? 1; St.1962. c. 616. 1: St.1964. c. 322: St.1965. c. 875. 1. 2; St.1966. c. 716: St.1967. c. 437: St.1967. c. 844. 23; St.1968. c. 24. 1; St.1968. c. 531.? 1;St.1969. c. 544. 1; St.1969. c. 831. St.1970. c. 215. 1: St.1973. c. 925. 1; St.1973. c. 1050. 1; St.1974. c. 205. 1; St.1974. c. 493. 1; St.1975. c. 706. 2; St.1976. c. 112. 1; St.1976. c. 156; St.1977. c. 130; St.1977. c. 691. 1; St.1977. c. 977; St.1978. c. 12; St.1978. c. 247; St.1978. c. 478. 2: St.1979. c. 230: St.1982. c. 189. 2; St.1983. c. 113; St.1984. c. 363. 1 to 4; St.1985. c. 114; St.1985. c. 220; St.1985. c. 451. 1:St.1986. c. 534. 1. 2: St.1987. c. 465. 1. 1A: St.1987. c. 522. 1; St.1987. c. 587. 1: St.1988. c. 180. 1: St.1989. c. 665. 1: St.1991. c. 109. l. 2: St.1992. c. 133.? 169: St.1992. c. 286. 1:St.1992. c. 403. 1: St.1996. c. 204. 3; St.1996. c. 450. 1 to 4; St.2002. c. 313. 1; St.2004. c. 116. 1. eff. Aug. 26. 2004; St.2004. c. 122. 2. eff. Sept. 1. 2004; St.2004. c. 149. 8. eff. July 1. 2004: St.2004. c. 349. eff. Dec. 15. 2004; St.2005. c. 130. 1. eff. Nov. 11. 2005: St.2007. c. 109. 1. eff. Dec. 5. 2007; St.2008. c. 176. 2. eff. July 8. 2008; St.2008. c. 308. 1. eff. Sept. 1. 2008: St.2008. c. 445. 1. eff. Mar. 30. 2009: St.2010. c. 131. 5. eff. July 1. 2010; St.2011. c. 176. 1. eff. Feb. 16. 2012; St.2011. c. 194. 3. eff. Nov. 22. 2011; St.2011. c. 199. 1. eff. July 1. 2012: St.2012. c. 139. 5. eff. July 1. 2012; St.2013. c. 38. 4. eff. July 1. 2013; St.2014. c. 313. 1. eff. Sept. 9. 2014. Notes of Decisions (164) M.G.L.Current through Chapter 75 of the 2016 2nd Armual Session .Z -: Add 023 10. Public inspection and copies of records; presumption; exceptions, MA ST 66 10 KeyCite Yellow Flag - Negative Treatment Proposed Legislation Massachusetts General Laws Annotated Part 1. Administration of the Government (Ch. 1-182) Title X. Public Records (Ch. 66-66a) Chapter 66. Public Records (Refs Annos) M.G.L.A. 66 10 10. Public inspection and copies of records; presumption; exceptions Effective: November 4, 2010 Currentness Every person having custody of any public record, as de?ned in clause Twenty-sixth of section seven of chapter four, shall, at reasonable times and without unreasonable delay, permit it, or any segregable portion of a record which is an independent public record, to be inspected and examined by any person, under his supervision, and shall furnish one copy thereof upon payment of a reasonable fee. Every person for whom a search of public records is made shall, at the direction of the person having custody of such records, pay the actual expense of such search. The following fees shall apply to any public record in the custody of the state police, the Massachusetts bay transportation authority police or any municipal police department or ?re department: for preparing and mailing a motor vehicle accident report, ?ve dollars for not more than six pages and ?fty cents for each additional page; for preparing and mailing a ?re insurance report, ?ve dollars for not more than six pages plus ?fty cents for each additional page; for preparing and mailing crime, incident or miscellaneous reports, one dollar per page; for furnishing any public record, in hand, to a person requesting such records, ?fty cents per page. A page shall be de?ned as one side of an eight and one-half inch by eleven inch sheet of paper. A custodian of a public record shall, within ten days following receipt of a request for inspection or copy of a public record, comply with such request. Such request may be delivered in hand to the of?ce of the custodian or mailed via ?rst class mail. If the custodian refuses or fails to comply with such a request, the person making the request may petition the supervisor of records for a determination whether the record requested is public. Upon the determination by the supervisor of records that the record is public, he shall order the custodian of the public record to comply with the person's request. If the custodian refuses or fails to comply with any such order, the supervisor of records may notify the attorney general or the appropriate district attorney thereof who may take whatever measures he deems necessary to insure compliance with the provisions of this section. The administrative remedy provided by this section shall in no way limit the availability of the administrative remedies provided by the commissioner of administration and ?nance with respect to any of?cer or employee of any agency, executive of?ce, department or board; nor shall the administrative remedy provided by this section in any way limit the availability of judicial remedies otherwise available to any person requesting a public record. If a custodian of a public record refuses or fails to comply with the request of any person for inspection or copy of a public record or with an administrative order under this section, the supreme judicial or superior court shall have jurisdiction to order compliance. In any court proceeding pursuant to paragraph there shall be a presumption that the record sought is public, and the burden shall be upon the custodian to prove with speci?city the exemption which applies. IWESTLAW 5 :r a . Add.024 10. Public inspection and copies of records; presumption; exceptions, MA ST 66 10 The clerk of every city or town shall post. in a conspicuous place in the city or town hall in the vicinity of the clerk's of?ce. a brief printed statement that any citizen may. at his discretion. obtain copies of certain public records from local of?cials for a fee as provided for in this chapter. The commissioner of the department of criminal justice information services. the department of criminal justice information services and its agents. servants. and attomeys including the keeper of the records of the ?rearms records bureau of said department. or any licensing authority. as de?ned by chapter one hundred and forty shall not disclose any records divulging or tending to divulge the names and addresses of persons who own or possess ?rearms. ri?es. shotguns. machine guns and ammunition therefor. as de?ned in said chapter one hundred and forty and names and addresses of persons licensed to carry and/or possess the same to any person. ?rm. corporation. entity or agency except criminal justice agencies as de?ned in chapter six and except to the extent such information relates solely to the person making the request and is necessary to the of?cial interests of the entity making the request. The home address and home telephone number of law enforcement. judicial. prosecutorial. department of youth services. department of children and families. department of correction and any other public safety and criminal justice system personnel. and of unelected general court personnel. shall not be public records in the custody of the employers of such personnel or the public employee retirement administration commission or any retirement board established under chapter 32 and shall not be disclosed. but such information may be disclosed to an employee organization under chapter 150E. a nonpro?t organization for retired public employees under chapter 180 or to a criminal justice agency as de?ned in section 167 of chapter 6. The name and home address and telephone number of a family member of any such personnel shall not be public records in the custody of the employers of the foregoing persons or the public employee retirement administration commission or any retirement board established under chapter 32 and shall not be disclosed. The home address and telephone number or place of employment or education of victims of adjudicated crimes. of victims of domestic violence and of persons providing or training in family planning services and the name and home address and telephone number. or place of employment or education of a family member of any of the foregoing shall not be public records in the custody of a govemment agency which maintains records identifying such persons as falling within such categories and shall not be disclosed. Credits Amended by St.1948. c. 550. 5: St.1973. c. 1050. 3: St.1976. c. 438. 2: St.1978. c. 294: St.1982. c. 189. 1: St.1982. c.4771St.1983. c. 15: St.1991. c. 412. 55: St.1992. c. 286. 146: St.1996. c. 39. 1: St.1996. c. 151. 210: St.1998. c. 238: St.2000. c. 159. 133: St.2004. c. 149. 124. eff. July 1. 2004: St.2008. c. 176. 61. eff. July 8. 2008: St.2010. c. 256. 58. 59. eff. Nov. 4. 2010. Notes of Decisions (178) M.G.L.Current through Chapter 75 of the 2016 2nd Annual Session End of Document 2016 Thomson Reuters. No claim to original US. Government \Vorks. AW Add. 025