Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM COMMONWEALTH OF MASSACHUSETTS The Appeals Court SUFFOLK, SS. NO. 2016-P-0074 PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. Plaintiff-Appellant, v. DEPARTMENT OF AGRICULTURAL RESOURCES, ET AL., Defendant-Appellees. ON APPEAL FROM A JUDGMENT OF THE SUFFOLK SUPERIOR COURT BRIEF OF APPELLEES DEPARTMENT OF AGRICULTURAL RESOURCES ET AL. MAURA HEALEY Attorney General Amy Spector, BBO # 557611 Assistant Attorney General Government Bureau One Ashburton Place Boston, Massachusetts 02108 (617) 963-2076 email: amy.spector@state.ma.us Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM TABLE OF CONTENTS TABLE OF AUTHORITIES............................... iii QUESTIONS PRESENTED.................................. 1 STATEMENT OF THE CASE................................ 2 Nature of the Case.............................. 2 Statutory Framework............................. 3 The Public Records Law..................... 3 Facts........................................... 5 Prior Proceedings............................... 8 Initiation of the Superior Court Action.... 8 Hearing and Superior Court Decision on the Department’s Motion to Stay Discovery............................ 10 The Parties’ Submission of Memoranda Addressing the Applicability of the Public Safety Exemption.......... 11 The Superior Court Decision.................... 14 SUMMARY OF ARGUMENT................................. 16 ARGUMENT............................................ 17 I. BECAUSE NO MATERIAL DISPUTED FACTS EXISTED CONCERNING WHETHER THE PUBLIC SAFETY EXEMPTION OR PRIVACY EXEMPTION APPLIED, THE COURT PROPERLY RESOLVED THOSE ISSUES AS A MATTER OF LAW........... 17 A. The Court Followed a Summary Judgment-Type Procedure.............. 17 B. The Standard of Judicial Review Governing the Public Safety Exemption............................ 19 Massachusetts Appeals Court C. II. Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM The Discovery Sought by PETA Was Not Relevant to the Legal Questions Presented.................. 22 THE SUPERIOR COURT PROPERLY HELD THAT THE DEPARTMENT EXERCISED REASONABLE JUDGMENT IN DETERMINING THAT DISCLOSURE OF THE INFORMATION WOULD LIKELY JEOPARDIZE PUBLIC SAFETY.................. 27 A. The Health Certificates Fell Within the Scope of the Public Safety Exemption..................... 27 B. There Were No Disputed Material Facts................................ 31 C. The Department’s Judgment Was Reasonable........................... 33 D. Additional Materials Considered by the Superior Court Confirmed that the Department’s Determination Was Reasonable........................... 39 III. THE SUPERIOR COURT ALSO PROPERLY HELD THAT THE PRIVACY EXEMPTION APPLIED TO THE REDACTED INFORMATION INSOFAR AS IT CONCERNED INDIVIDUAL PERSONS.............. 41 CONCLUSION..................................... 50 ADDENDUM............................................. 1 ii Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM TABLE OF AUTHORITIES Cases Ahmad v. Department of Correction, 446 Mass. 479 (2006)............................23 Allen v. Holyoke Hosp., 398 Mass. 372 (1986)............................43 Bogertman v. Attorney General, 474 Mass. 607 (2016) .........................................21 Boston Globe Media Partners, L.L.C., v. Massachusetts Department of State Police (Appeals Court No. 2016-P-0538) ....... 19n Champa v. Weston Public Schools, 473 Mass. 86 (2015)......................5, 42, 49 Cape Cod Times v. Sheriff of Barnstable County, 443 Mass. 587 (2005)...............47, 48n Commonwealth v. Williamson, 462 Mass. 676 (2015)............................33 Dan’s City Used Cars, Inc. v. Pelkey, 133 S. Ct. 1769 (2013)......................29, 30 Federal Deposit Ins. Corp. v. Csongor, 391 Mass. 737 (1984)............................33 Georgiou v. Commissioner of the Dep’t of Industrial Accidents, 67 Mass. App. Ct. 428 (2006)...........44, 46n, 47 Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427 (1983).....................3, 4 Globe Newspaper Co. v. Police Comm. of Boston, 419 Mass. 852 (1995).............41-42, 45 In Re Subpoena Duces Tecum, 445 Mass. 685 (2006)............................42 iii Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM Lakin Law Firm, P.C. v. Federal Trade Comm’n, 352 F.3d 1122 (7th Cir. 2003), cert. denied, 542 U.S. 904 (2004)...............46 Lesar v. United States Dep’t of Justice, 636 F.2d 472 (D.C. Cir. 1980)................48-49 Morales v. Trans World Airlines, 504 U.S. 374 (1992).........................29, 30 Pottle v. School Comm. of Braintree, 395 Mass. 861 (1985)...................47, 48n, 49 Resendes v. Boston Edison Co., 38 Mass. App. Ct. 344, rev. denied, 420 Mass. 1105 (1995)..................22n Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444 (2007).............................3 The Locator Services Group, Ltd. v. Treasurer and Receiver General, 443 Mass. 837 (2005)............................19 Torres v. Att’y Gen’l, 391 Mass. 1 (1984)..........................43, 44 United States v. Fullmer, 584 F.3d 132 (3d Cir. 2009)....................40n Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378 (2002) ........................4, 18 Yankee Atomic Elec. Co. v. Secretary of the Commonwealth, 402 Mass. 750 (1988)...........20-21 iv Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM Massachusetts Constitutional Provisions Mass. Const. Amend. Art. 48..........................20 Federal Statutes 5 U.S.C. § 552(b)(6).................................45 State Statutes G.L. c. 4, § 7, cl. 26................................3 G.L. c. 4, § 7, cl. 26(c).............................5 G.L. c. 4, § 7, cl. 26(n)........................passim G.L. c. 4, § 7, cl. 26(o)........................44, 47 G.L. c. 66, § 10................................3, 4, 5 G.L. c. 66, § 10(b)...................7, 20, 24-25n, 37 G.L. c. 66, § 10(d)..........................31, 45, 48 Rules and Regulations Mass. R. Civ. P. 25(d)(1)............................8n Mass. R. Civ. P. 56(f)...........................14, 18 Miscellaneous Black’s Law Dictionary...............................29 v Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM QUESTIONS PRESENTED People for the Ethical Treatment of Animals (“PETA”) brought this action under the Public Records Law, challenging the determination by the Department of Agricultural Resources (“Department”) that the names, addresses, and telephone numbers of persons and facilities identified in records reflecting the importation of primates into Massachusetts (“requested information”), were protected from disclosure under the public safety exemption to the Public Records Law, which exempts from the definition of “public record” certain records the disclosure of which, in the “reasonable judgment” of the record custodian, would likely jeopardize public safety. The appeal presents the following issues: I. Whether the superior court properly resolved the issue of the applicability of the public safety exemption to the requested information without allowing the discovery sought by PETA, where the information sought in discovery was not relevant to the issue of whether the Department had exercised “reasonable judgment” in finding that the public safety exemption applied? II. Whether the superior court correctly found that the issue of the applicability of the public safety exemption could be resolved as a matter of law, where there were no disputed facts that were material to the Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM question of whether the Department had exercised reasonable judgment in finding that the exemption applied? III. Whether the superior court correctly held that the Department exercised reasonable judgment in determining that disclosure of the requested information would likely jeopardize public safety, and that the information therefore fell within the public safety exemption, where the Department’s determination was based on a Veterans Health Administration memorandum directing federal agencies to withhold similar information in response to requests under the federal Freedom of Information Act in light of reports of violence by animal rights activists targeting animal research facilities and personnel? IV. Whether the superior court correctly held that the requested information also was exempt from disclosure under the privacy exemption to the Public Records Law, where the Department demonstrated that disclosure of such information would have a significant impact on the privacy interests of such persons, because it could place them at risk of physical harm, while not advancing any public interest within the meaning of the Public Records Law? STATEMENT OF THE CASE Nature of the Case This is an appeal from a judgment of the Suffolk 2 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM Superior Court (Muse, J.), holding (1) that the names, addresses, and telephone numbers of persons and facilities in Massachusetts, contained in redacted animal health inspection certificates provided by the Department to PETA, are exempt from disclosure under the public safety exemption to the Public Records Law, and (2) that the names, addresses, and telephone numbers identifying individual persons contained in the certificates are exempt from disclosure under the privacy exemption to the Public Records Law. Statutory Framework The Public Records Law The Public Records Law, G.L. c. 66, § 10, and G.L. c. 4, § 7, cl. 26, requires “public access to various records . . . in the possession of public officials.” Globe Newspaper Co. v. Boston Retirement Board, 388 Mass. 427, 430 (1983) (“Boston Retirement Board”). However, “[n]ot every record or document kept or made by [a] government agency is a ‘public record.’” Suffolk Construction Co. v. Division of Capital Asset Management, 449 Mass. 444, 454 (2007). The statute contains a general definition of “public records,” to which public access is mandated, followed by 20 categories of records that are exempt from mandated disclosure. G.L. c. 4, § 7, cl. 26. 1 1 General Laws c. 4, §7, cl. 26, provides in relevant part: “‘Public records’ shall mean all books, papers, 3 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM While “disclosure is favored” to serve the purpose of the public records law, Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 382-83 (2002), this statutory purpose “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,” namely, those set forth in the statutory exemptions. Boston Retirement Board, 388 Mass. at 436. This case concerns the “public safety” exemption, set forth in clause 26(n), which exempts from “public records” the following: (n) records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (b) of section 10 of chapter 66, is likely to jeopardize public safety. G.L. c. 4, § 7, cl. 26(n) (emphasis added). The case also concerns the “privacy exemption,” . . . or other documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth . . . unless such materials or data fall within the following [20] exemptions . . . .” 4 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM G.L. c. 4, § 7, cl. 26(c), which exempts “any . . . materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy[.]” Champa v. Weston Public Schools, 473 Mass. 86, 96 (2015). In court proceedings under the Public Records Law, the burden is on the record custodian “‘to prove with specificity’” that the requested records fall within one of the statutory exemptions. Id. at 90 (internal citation omitted); G.L. c. 66, § 10. Facts In February 2014, PETA submitted two requests for public records to the Department. (“A.”) 203-04. See Joint Appendix The first request sought “any and all permits, licenses, health certificates, and other documentation related to the export and/or import of nonhuman primates in Massachusetts during 2013.” at 203. Id. The second request sought “all records referencing, reflecting or related 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 nonhuman primates.” Id. at 204. The Department responded to the first request by providing 11 pages of health certificates reflecting veterinary inspections of non-human primates sent from out-of-State facilities into Massachusetts in 2013. 5 Massachusetts Appeals Court Id. at 205-20. Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM The certificates – on forms issued by North Carolina, South Carolina, and the federal Department of Agriculture – had redactions of information identifying facilities in Massachusetts that received primates in 2013, the out-of-State facilities that sent the primates to Massachusetts, and the out-of-State veterinarians who certified that the primates were free of infectious diseases. 205-15. 2 Id. at The Department explained that it made the redactions because disclosure of information identifying the facilities that sent and received the primates “could compromise the security of locations housing non-human primates, thus increasing the risk to public safety of the animals as well as the people and buildings involved with housing and transporting the animals.” Id. at 216-17 (citing exemption (n)). In support of its determination, the Department cited and attached a 2013 memorandum by the United States Department of Veterans Affairs, directing all Veterans Health Administration (“VHA”) offices to withhold, under the federal Freedom of Information Act, “any personal information about VHA personnel 2 The Department explained that it had redacted the names and addresses of the “consignor” (the facility that sent primates into Massachusetts) and “consignee” (the facility that received the primates); the federal Department of Agriculture license/registration number of such facilities; and the name, address, telephone number, and license or accreditation number of the veterinarian who inspected the primates. A. 216. 6 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM engaged in any way in animal research in response to requests for the information [including requests made under the federal Freedom of Information Act].” at 218-19. Id. 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.” Id. at 218. The Department stated that it did not have any records responsive to the second request. Id. at 217. PETA sought review of the Department’s response to the first records request by filing a petition for review with the Supervisor of Public Records, pursuant to G.L. c. 66, § 10(b). A. 235-38. The Supervisor upheld the Department’s decision that the public safety exemption applied, finding that “the withheld portions of the records consist of information that is ‘related to the security or safety of persons or buildings’ and the disclosure of such information ‘is likely to jeopardize public safety.’” 3 Id. at 221-22. 3 The Supervisor noted that “the manner in which this information is treated by the federal government is persuasive when examining the Department’s Exemption (n) claim.” A. 224. 7 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM Prior Proceedings Initiation of the Superior Court Action In October 2014, PETA filed this action against the Department and its Commissioner, asserting that the Department’s response to PETA’s public records request violated the Public Records Law. 4 A. 1, 7. PETA sought a declaration that (1) the public safety exemption did not apply to the redacted information, which thus was a “public record” subject to disclosure; and (2) no other exemption applied. Id. PETA thereafter served extensive discovery requests in the form of interrogatories, document requests, requests for admissions, and a notice of deposition, seeking information concerning the basis for the Department’s determination that the public safety exemption applied. A. 228-47. 5 The Department moved for a protective order staying discovery pending resolution of a dispositive motion that the Department 4 The Complaint named Gregory Watson, then the Commissioner, as a defendant. A. 3. John Lebeaux, who became Commissioner in February 2015, was automatically substituted as a defendant, pursuant to Mass. R. Civ. P. 25(d)(1). 5 For example, PETA sought the identity of all documents and persons consulted by the Department in determining that exemption 26(n) applied; the identity of “all communications” that the Department made in determining that the exemption applied; and the identification of “all facts” upon which the Department had relied in invoking the exemption. A. 242-43. PETA requested documents including all documents from 2005 to the present concerning alleged safety risks relating to transport of primates. 8 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM would soon file concerning the applicability of the public safety exemption. A. 1, 16-22. In support of the motion for protective order, the Department filed an affidavit by the Director of the Department’s Division of Animal Health, Michael Cahill, who had reviewed PETA's public records request. Id. at 23-25. Mr. Cahill explained that he was responsible for having determined that disclosure of the redacted information would likely jeopardize public safety; that the Commissioner had approved his determination; and that, in making the determination, the Department had relied only on three documents, copies of which were attached to the affidavit: the federal VHA memorandum referred to above; a 2013 decision of the Supervisor of Public Records, upholding the Department’s determination that the public safety exemption applied to a similar, earlier public records request by PETA in 2013; and a memorandum by the Department’s legal office concerning PETA’s 2013 request. Id. at 16-25, 218-220, 223-27. Based on the affidavit, the Department argued that there was no need for discovery because PETA’s discovery requests sought information that the Department had essentially stipulated to, that is, the basis upon which the Department had invoked exemption 26(n). Id. at 20. PETA opposed the Department’s motion for a protective order. 9 Id. at 26-33, 118-24. Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM Hearing and Superior Court Decision on the Department’s Motion to Stay Discovery The Court held a hearing on the motion to stay discovery. The judge’s colloquy with counsel at the hearing reflected that the Court envisioned (correctly) that the issue of whether the Department had properly applied the public safety exemption presented an issue of law. A. 61 (“it would be – a judgment as a matter of law”). The Court therefore suggested an approach akin to summary judgment (although the Court did not explicitly use the term “summary judgment”). The Court directed the Department to submit a statement identifying the facts that it had relied on in determining that the public safety exemption applied, together with a memorandum of law. 6 PETA would then have an opportunity to argue that the Department’s determination did not constitute a “reasonable judgment.” Id. at 57 (PETA would have the opportunity to argue that “those are not valid reasons”). The Court reiterated that the question of whether the Department had properly applied the exemption would then be resolved as a matter of law. 6 See A. 55 (“I’m going to invite the Commonwealth to give me, by way of affidavit or otherwise, a concise statement of all of the reasons that they claim, factually, to give support for their claim of the exemption”); id. at 60 (directing Department to set forth “the facts that the agency relied upon”). 10 Massachusetts Appeals Court Id. at 60. 7 Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM Following the hearing, the Court issued an order stating: For reasons set forth at hearing, consideration of motion is deferred so that Defendant may file a comprehensive statement in support of its reasons for its claim of “public safety.” If discovery is warranted it shall be allowed. However, it is likely that the case may be ripe for disposition at next hearing, and parties may brief and argue accordingly. A. 72. The Parties’ Submission of Memoranda Addressing the Applicability of the Public Safety Exemption In accordance with the Court’s directive, the Department submitted a memorandum of law, arguing that it had exercised reasonable judgment in determining that the public safety exemption applied to the redacted information, and arguing that the information relating to individual persons also was protected by the privacy exemption. A. 77-99. Based on its memorandum and on facts set forth in the accompanying Supplemental Affidavit of Michael Cahill, the Department argued that the Court should resolve these issues “as a matter of law.” Id. at 78. In his supplemental affidavit, Mr. Cahill 7 See also id. at 62 (“I’m going to suggest to you that it will be . . . a statement of all of the facts that the agency relied upon in its determination . . . that the 26(n) exemption applied,” and “then as a matter of law, they’re [PETA] going to argue that it ought not to be granted, or they’re going to come back and say further discovery is required.”). 11 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM reiterated that, in applying the public safety exemption, the Department had relied only on the three documents identified in Mr. Cahill’s earlier affidavit. Id. at 73-76. Mr. Cahill stated that the Department had relied on the following facts: • the fact of the VHA’s issuance of the memorandum directing VHA facilities not to release information concerning personnel engaged in animal research; • the fact that the VHA memorandum contained statements discussing attacks and vandalism by animal rights activists on animal research facilities and persons and describing the “foreseeable harm” to animal researchers resulting from disclosure of personal information concerning personnel engaged in animal research, and other statements as well; • the fact that, in 2013, the Supervisor of Public Records had upheld the Department’s determination that the public safety exemption applied to a similar earlier request by PETA; and • the fact that, in a 2013 memorandum concerning PETA’s earlier similar 2013 request, the Department’s legal office had concluded that the public safety and privacy exemptions applied to similar information. Id. at 74-76. In arguing that it had exercised “reasonable judgment” in invoking the public safety exemption, the Department relied primarily on the VHA memorandum. Id. at 85-91. The Department also cited additional material that it had “not directly rel[ied] on” in finding that the exemption applied, but which confirmed the reasonableness of its determination: the legislative history of the Animal Enterprise 12 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM Terrorism Act, 18 U.S.C. § 43 (“AETA”); case law; a 2008 letter setting forth the Attorney General’s view that exemption (n) applied to records containing the names and addresses of farms and farm owners producing genetically modified corn; a press release concerning AETA; and a news report about violence against animal researchers and facilities. Id. at 87-95, 248-84. PETA filed a memorandum in opposition to the Department’s memorandum, supported by affirmations of PETA’s counsel, David Milton and Martina Bernstein. Id. at 100-117, 125-41. PETA devoted virtually all of its memorandum to the argument that the Court should “enter judgment” in PETA’s favor because the Department had failed to establish that any exemption to the Public Records Law applied. Id. at 100-117. In addition, through the supporting Bernstein Affirmation, PETA submitted over 70 exhibits, including in particular printouts of screenshots from, or links to, websites of governmental and private institutions, some of which identified specific institutions and, in some cases, specific persons involved in animal research. Id. at 125-41. PETA argued that the existence of such publicly-available information undercut the Department’s determination that the disclosure of the information would create a risk to public safety. Id. at 106-11. PETA argued in the alternative that the Court 13 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM should defer consideration of the merits of the case until PETA was provided with an opportunity to take discovery. Id. at 101 & n.1. The nature of the discovery was described in the supporting Milton Affirmation, which stated that “Rule 56(f) provides a helpful framework for considering Plaintiff’s request for discovery.” Id. at 121-22. The Superior Court Decision After a hearing, the Court issued a decision. At the outset of its discussion, the court reasoned that the Legislature’s use of the terms “reasonable judgment” and “likely to jeopardize” public safety, in exemption (n), suggested that the Legislature intended to afford “the keeper and supervisor of public records a heightened level of deference.” Id. at 190. The Court went on to hold that, based on exemption (n)’s reference to “persons or buildings . . . located within the Commonwealth,” the exemption did not apply to information concerning persons or facilities located outside Massachusetts, but the exemption did apply to information concerning persons or facilities in Massachusetts. Id. at 191-95. It then continued: 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 14 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM similarly 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 serve to identify persons, facilities, or the location of the persons or facilities. Id. at 192. In concluding that the Department had exercised “reasonable judgment,” the Court emphasized that the Department “followed the guidance of a federal agency who had recently (as of 2013) determined that the release of such information [the identity of animal research persons and facilities] could jeopardize the safety of researchers and security of research facilities due to the threat of terrorist or criminal acts.” Id. at 194. The Court noted that PETA had shown that “the public may conduct internet research and find information” on veterinarians and others who had performed animal research, as well as facilities conducting such research. Id. at 195. But the Court reasoned that “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.” Id. The Court entered a judgment declaring in three numbered paragraphs that (1) the names, addresses, and telephone numbers of persons and facilities in Massachusetts were within the public safety exemption; 15 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM (2) that the same information as to persons and facilities outside Massachusetts was not within the public safety exemption; and (3) that the names, addresses, and telephone numbers of individual persons were within the privacy exemption. A. 1-2, 195-99. PETA appealed from the first and third paragraphs of the judgment. Id. at 201. 8 PETA requests that this Court vacate paragraphs 1 and 3 of the judgment and remand the case for discovery. PETA Br. at 13, 45. SUMMARY OF ARGUMENT The superior court used a summary-judgment type procedure, which was appropriate because no material facts were in dispute concerning the applicability of the public safety or privacy exemptions. (pp. 17-19) Most of the discovery sought by PETA was not relevant to the question of the reasonableness of the Department’s judgment in invoking the public safety exemption. (pp. 22-27) The public safety exemption encompasses records that have an obvious connection to safety and security of persons and buildings notwithstanding that the records themselves do not constitute security measures. (pp. 28-31) In light of a federal directive ordering federal agencies not to disclose similar information revealing the identity of animal researchers, the Department 8 The Department did not appeal from paragraph 2 of the Judgment. 16 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM exercised reasonable judgment in determining that disclosure of the health certificates would likely jeopardize public safety. (pp. 33-39) The reasonableness of the Department’s determination was further confirmed by additional materials in the nature of federal legislative history and case law, which the superior court properly considered. (pp. 40-41) Given the public safety concerns raised by disclosure of the health certificates, the superior court properly found that the privacy exemption also applied to information in the certificates that identified individual persons. (pp. 42-50) ARGUMENT I. BECAUSE NO MATERIAL DISPUTED FACTS EXISTED CONCERNING WHETHER THE PUBLIC SAFETY EXEMPTION OR PRIVACY EXEMPTION APPLIED, THE COURT PROPERLY RESOLVED THOSE ISSUES AS A MATTER OF LAW. A. The Court Followed a Summary Judgment-Type Procedure. PETA contends that the superior court employed a “novel procedure [that] the court devised sua sponte,” because the Department filed a “memorandum” of law but did not file a separate “motion” denominated as such, and the Court “allowed” the Department’s “memorandum.” PETA Br. at 15; A. 186. This characterization elevates form over substance. Although the superior court did not specifically use the term “summary judgment,” its directive at the hearing on the Department’s motion to stay discovery – 17 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM instructing the Department to file a memorandum of law, together with a “concise statement” of the facts, see A. 55, 57, and the court’s further statement that it would decide the issue “as a matter of law,” id. at 60, 62 – left no doubt that the court applied a summary judgment-type analysis. Because the superior court found that the issues presented could be resolved as a matter of law, there was nothing “novel” about the summary judgment-type process that the court followed. See generally Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378 (a judge may employ the method of review he deems most advisable in determining whether public records are exempt from inspection, and there is room for flexibility). Indeed, PETA itself suggested that summary judgment was an appropriate procedure: the Milton Affirmation stated that “Rule 56(f) provides a helpful framework for considering Plaintiff’s request for discovery.” A. 122. In any event, PETA acknowledges here that the superior court “in effect granted summary judgment” and that on appeal, this Court should “apply the standard of review for summary judgment.” PETA Br. at 15. Thus, although the parties differ as to whether the superior court properly entered judgment in the Department’s favor in the first and third paragraphs of the judgment, there 18 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM is no disagreement that the court’s decision was in the nature of summary judgment. On review, this Court should uphold the decision, because “the trial judge ruled on undisputed material facts and his ruling was correct as a matter of law.” The Locator Services Group, Ltd. v. Treasurer and Receiver General, 443 Mass. 837, 846-47 (2005) (internal citation and quotation marks omitted). B. The Standard of Judicial Review Governing the Public Safety Exemption. The standard governing judicial review of determinations by record custodians applying the public safety exemption is not discussed in the superior court’s decision and has not been addressed in any appellate decision. 9 The Department accordingly sets forth, below, the standard that it believes should govern judicial review of such determinations. In reviewing whether a record custodian exercised “reasonable judgment” in invoking the public safety exemption, a reviewing court should consider the reasons articulated by the custodian in making its determination, as well as any additional legal arguments presented by the custodian in an action challenging that determination. 9 With respect to the Another case pending in this Court, Boston Globe Media Partners, L.L.C., v. Massachusetts Department of State Police (No. 2016-P-0538) also concerns the applicability of the public safety exemption. 19 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM factual basis for the custodian’s determination, a court should consider those facts that the custodian actually relied on in making its determination, as well as any other directly relevant facts that it considered or as to which it plainly should have taken official notice. A useful analogy may be drawn to the standards governing the factual inquiry that the Attorney General is required to make in reviewing initiative petitions under amendment article 48, particularly because the Attorney General’s decision whether to certify an initiative petition must occur within a very short time-frame, like that of a record custodian, who is required to respond to a public records request within 10 days. § 10(b). See G.L. c. 66, Regarding initiative petitions, the Supreme Judicial Court has held that the Attorney General is not required to hold “extensive hearings” to determine the factual impact of a petition but that she should consider “the apparent factual impact flowing from a petition’s language” as well as “facts which can be officially noticed.” Yankee Atomic Elec. Co. v. Secretary of the Commonwealth, 402 Mass. 750, 759 (“Yankee I”) (1988). The Court explained that “[o]fficial notice includes matters subject to judicial notice, as well as additional items of which an agency official may take notice due to the agency’s 20 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM established familiarity with and expertise regarding a particular subject area.” Id. at 759 n.7. If this Court were to apply an analogous standard to a public records request, a custodian invoking the public safety exemption would not be required to conduct an “investigation” of the sort that PETA has suggested here, i.e., an independent investigation of the facts underlying the federal VHA memorandum. Cf. Bogertman v. Attorney General, 474 Mass. 607, 619 (2016) (“‘the Attorney General is not to become involved with holding extensive hearings to determine the full impact of a petition’”) (quoting Yankee I, 402 Mass. at 758). By necessity, the factual inquiry made by a custodian in responding to a records request must be brief. On judicial review of a custodian’s determination invoking the public safety exemption, a reviewing court would consider the reasons stated by the custodian in its records response and any legal arguments presented to the court. In deciding whether the custodian’s decision was based on “reasonable judgment,” the court would look to those facts that the custodian considered as well as facts as to which the custodian should have taken official notice, together with any additional judicially-noticeable facts bearing on the reasonableness of the custodian’s determination. 21 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM In the circumstances of this case, application of such a standard would mean that the court could consider not only those facts that the Department’s decision-maker (Mr. Cahill, as approved by the Commissioner) actually relied on as the basis for his determination to invoke the exemption (as outlined in the Department’s records response and in the Cahill supplemental affidavit) but also any other facts considered by Mr. Cahill regarding the public safety risks of disclosing the records, and any officiallynoticeable facts. The court also would be free to take judicial notice of any additional judiciallynoticeable facts brought to its attention. C. The Discovery Sought by PETA Was Not Relevant to the Legal Questions Presented. PETA argues that the superior court abused its discretion by entering judgment without allowing PETA to obtain discovery. PETA Br. at 13, 16-22. 10 But the discovery that PETA sought – relating primarily to the applicability of the public safety exemption – was not relevant to the legal questions presented (with one exception noted below), and the superior court thus 10 As PETA recognizes, the superior court’s order deferring discovery is reviewed only for abuse of discretion. PETA Br. at 16; Resendes v. Boston Edison Co., 38 Mass. App. Ct. 344, 350 (trial judge’s decision as to conduct and scope of discovery will not be disturbed on appeal absent abuse of discretion resulting in prejudicial error), rev. denied, 420 Mass. 1105 (1995). 22 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM did not abuse its discretion in first deferring, and then ultimately not allowing such discovery. As to the public safety exemption, the legal question presented was whether the Department had exercised “reasonable judgment” in determining that disclosure of the redacted information was “likely to jeopardize public safety.” Here, that question could be resolved as a matter of law, based on the Department’s stated reasons for its determination (and taking into account other information that the Department had considered, see infra n. 13); those reasons either would be sufficient, or not, for the Court to find that the Department had exercised “reasonable judgment.” Cf. Ahmad v. Department of Correction, 446 Mass. 479, 484 (2006) (inquiry into issue of qualified immunity required court to undertake “an objective inquiry into the legal reasonableness of the official action,” a determination that presents “a question of law”). Given the limited nature of that inquiry, the Superior Court did not abuse its discretion in deferring discovery. Significantly, PETA did not contest the truth of any of the facts that were presented in Mr. Cahill’s Supplemental Affidavit, and that were material to the reasonableness of the Department’s determination, namely, the fact that the Department relied on the 23 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM three documents referenced in the affidavit, and the fact that the three documents contained the statements cited in the affidavit. Nor were those facts the focus of PETA’s discovery requests. Rather, PETA sought discovery to obtain other information, most of which – while of interest to PETA – was not material to the legal issue of the reasonableness of the Department’s determination. According to the Milton Affirmation, PETA sought discovery to learn whether the Department had “investigated the basis for the factual assertions” in the VHA memorandum and legal office memorandum. 122. A. That information was irrelevant to the question whether the Department had made a “reasonable judgment,” for the simple reason that the Department had no obligation to reinvent the wheel and undertake an independent “investigation” of the statements in the federal directive. PETA’s request for this kind of information rests on a misunderstanding of an agency’s role in responding to a public records request. Particularly in a post-9/11 world, it was an eminently “reasonable judgment” for the Department to rely on an authoritative determination by a federal agency having greater access to data concerning terrorist threats both at home and abroad. 11 11 The fact that the Public Records Law requires record custodians to comply with a records request within 10 24 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM PETA also sought discovery as to whether the Department had provided the health certificates to others in unredacted form, a fact, if true, that PETA contended “would undermine” the Department’s position with respect to the privacy exemption and the public safety exemption. A. 121. But discovery of this matter was likewise irrelevant to the applicability of either cited exemption. For example, even if one were to assume that the Department had disclosed the redacted information to others, that would not remove the information from the protection of the privacy exemption (and thus discovery concerning whether it had done so is not relevant). This is because, if an agency’s mistaken (or even deliberate) disclosure of a record were enough to remove the record from the protection of the privacy exemption, the result would be that any government official could destroy the protection provided by exemption (c) by its own unilateral action, a result that would be completely at odds with the Legislature’s creation of the exemption in the first place. Similarly, even if one were to assume that the Department had disclosed the unredacted records to others, that fact also would not bear on the days, see G.L. c. 66, § 10(b), in and of itself shows that the statute does not envision that a custodian undertake the sort of exhaustive investigation that PETA’s discovery request contemplates. 25 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM reasonableness of the Department’s determination that disclosure, in this case, would likely jeopardize public safety. The inadvertent, or even deliberate, disclosure of the unredacted records to others, at least if it had occurred prior to the Department’s having become aware of the VHA memorandum, would not undermine the reasonableness of the Department’s later determination - made with the benefit of authoritative federal guidance – that disclosure of the information in the records again would pose a threat to public safety. While it would have been better in such a scenario if the Department had not disclosed the information at all, two disclosures is still more threatening to public safety than one. 12 There is one discrete aspect of the discovery sought by PETA that the Department acknowledges would have been appropriate under the standard of review proposed in Section I.B above: information as to whether the Department had considered documents that “undermine[d] its position” but that it had “disregarded,” i.e., documents suggesting that “disclosure would be unlikely to cause harm.” 22. A. 121- Although the Department opposed discovery of such 12 Although not reflected in the record, the Department in fact has not disclosed the redacted information in the health certificates (except to counsel representing the Department in this matter). In the event that this case were remanded, the Department would so state in an affidavit. 26 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM materials in Superior Court, it acknowledges that, under the standard of review proposed above, narrowlytailored discovery of whether the Department had considered such documents (but ultimately found them unpersuasive) would be appropriate to the inquiry whether the Department had exercised reasonable judgment. 13 In future cases, if a custodian invoking exemption (n) were to disclose, in its records response, the universe of relevant materials in its possession that it considered (even if the agency did not find certain of the materials persuasive), any such discovery might be rendered unnecessary or at least would be substantially narrowed. II. THE SUPERIOR COURT PROPERLY HELD THAT THE DEPARTMENT EXERCISED REASONABLE JUDGMENT IN DETERMINING THAT DISCLOSURE OF THE INFORMATION WOULD LIKELY JEOPARDIZE PUBLIC SAFETY. A. The Health Certificates Fell Within the Scope of the Public Safety Exemption. In challenging the superior court’s decision, PETA argues, as a threshold matter, that the public 13 If this case were remanded, the Department would file an affidavit stating that it does not have information or documents of the sort that PETA sought to discover on this point, namely, “[i]nformation or documents in the Department’s sole possession that it did not rely on because they do not support its denial” of PETA’s records request, such as documents “describing public disclosure of animal research information, or opinions from knowledgeable sources that disclosure would be unlikely to cause harm.” A. 121-22. 27 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM safety exemption does not encompass the type of records at issue here, because health certificates are not in the “same class” as those records that are specifically mentioned in exemption (n), such as blueprints and schematic drawings, and that involve “buildings, transportation, and other infrastructure.” PETA Br. at 23-25. The Court should reject this argument, which is based on an overly formalistic reading of the statute. By its express terms, exemption (n) is not limited to those records that are specifically described at the outset of the exemption: “records, including, but not limited to, blueprints, plans, policies, procedures and schematic draws, 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 . . . . G.L. c. 4, § 7, cl. 26(n). The Legislature thus deliberately chose not to limit the public safety exemption to only one “class” of specificallyidentified records, instead including within exemption (n)’s protective reach “any other records relating to the security or safety of persons.” The ACLU of Massachusetts also argues that exemption (n) should be understood as being limited to records that themselves constitute security measures 28 Massachusetts Appeals Court Case: 2016-P-0074 for persons or buildings: Filed: 9/2/2016 12:14:08 PM “It is not enough to ask if their release could impact security – the records themselves must be of the kind specified by the statute.” ACLU Amicus Br. at 12-14. But had the Legislature intended to so limit exemption (n), it could have done so explicitly, e.g., by stating that the exemption applies to “all other records describing or constituting” security measures, or “all other records designed to implement security measures.” Instead, by using the phrase “relating to,” in the language “all other records relating to the security or safety of persons or buildings,” the Legislature deliberately chose a term that has been broadly construed to mean having “a connection with, or reference to” something. Morales v. Trans World Airlines, 504 U.S. 374, 383-84 (1992) (explaining, in the context of ruling on a pre-emption issue, that the “ordinary meaning of these words [“relating to”] is a broad one – ‘to stand in some relation; to have bearing or concern; . . . ; to bring into association with or connection with’”) (citing Black’s Law Dictionary); id. at 384 (“relates to” means “has a connection with”); Dan’s City Used Cars, Inc. v. Pelkey, 133 S. Ct. 1769, 1778 (2013) (“related to” means “having a connection with or reference to . . . whether directly or indirectly”) (internal citation and quotation marks omitted). 29 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM Given the broad meaning of the term “relating to,” and in light of the evident legislative purpose of exemption (n), namely, to protect public safety, the Court should construe the exemption to apply where, as here, the records have an obvious connection to safety and security of persons and buildings – since their disclosure could put specific people and buildings at risk – notwithstanding that the records themselves do not constitute security measures. To be sure, the Department is not arguing that “the sky is the limit.” Dan’s City, 133 S. Ct. at 1778 (rejecting that broad a construction of “related to” in a federal preemption clause). The Department thus does not suggest that exemption (n) encompasses records that have at best only a “tenuous” or “remote” connection to public safety. (same). Morales, 504 U.S. at 390 But where, as here, the records consist of information the disclosure of which, in the view of an authoritative federal agency, would likely jeopardize the physical safety of certain persons and facilities due to potential acts of domestic terrorism, the records should reasonably be understood as “relating to the security or safety of persons or buildings,” and thus falling within exemption (n). Moreover, the Legislature has specifically recognized the dangers flowing from disclosure of the employment addresses of persons engaged in certain 30 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM controversial activities, having amended the statute in 1996 to provide that employment addresses of abortion providers are exempt from the definition of “public record.” G.L. c. 66, § 10(d) (exempting, from definition of public records, the “place of employment . . . of persons providing or training in family planning services). There is no reason to think that, when the Legislature enacted exemption (n) in 2002, in the wake of the September 11 terrorist attacks, it intended to provide any less protection to other potential victims of domestic terrorism. B. There Were No Disputed Material Facts. PETA also argues that (irrespective of the discovery issue, discussed supra), the superior court erred in deciding the issue involving the public safety exemption as a matter of law, because disputed facts existed concerning whether disclosure of the redacted information was actually “likely to jeopardize public safety.” PETA Br. at 31-40. This argument is based on a misunderstanding of the applicable legal standard. Under G.L. c. 4, § 7, cl. 26(n), the issue for the superior court was whether the Department made a “reasonable judgment” in determining that disclosure of the redacted information was “likely to jeopardize public safety,” not the extent to which disclosure of the information was, as a factual matter, “likely to 31 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM jeopardize public safety.” To be sure, the question of whether the Department exercised “reasonable judgment” in finding that disclosure was “likely to jeopardize public safety” is not entirely unrelated to the question whether disclosure in fact is likely to jeopardize public safety. But the two questions are different, and the court did not need to resolve any factual dispute about the actual likelihood of a public safety risk; it only decided that the Department’s judgment was facially reasonable, a decision that did not entail any disputed facts. Critically, PETA did not dispute the material facts set forth in the Cahill supplemental affidavit, concerning the existence and contents of the documents upon which the Department had relied. And the Department did not dispute facts cited by PETA in the Bernstein Affirmation reflecting the existence of certain publicly-available sources of information about animal research facilities or persons. As a result, while the parties disagreed as to the significance of those facts, the facts themselves were not in dispute. Based on those undisputed facts, and as developed in Section II.C. below, the superior court properly resolved, as a matter of law, the question of whether the Department had exercised “reasonable judgment.” See, e.g., Federal Dep. Ins. 32 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM Corp. v. Csongor, 391 Mass. 737, 740 (1984) (grant of summary judgment will be overturned only where party shows a dispute of material fact or error of law). C. The Department’s Judgment Was Reasonable. The public safety exemption is the only exemption in the Public Records Law that explicitly confers on the record custodian the authority to use its “reasonable judgment” to determine whether disclosure of a record creates a risk, namely, in the case of the public safety exemption, whether disclosure is “likely to jeopardize public safety.” 26(n). G.L. c. 4, § 7, cl. The phrase “reasonable judgment of the record custodian” appears nowhere else in the Public Records Law, suggesting that the Legislature intended to give custodians greater discretionary authority to withhold materials under exemption (n) than under the other statutory exemptions. See Commonwealth v. Williamson, 462 Mass. 676, 682 (2015) (“Where the Legislature used different language in different paragraphs of the same statute, it intended different meanings”) (internal quotation marks and citation omitted). Based on the “reasonable judgment” language, the superior court correctly reasoned that the Legislature intended to give “heightened deference” to the determination of the record custodian. A. 191. PETA argues that the court’s recognition of such deference represents a “radical change” in the statute. 33 PETA Massachusetts Appeals Court Br. at 26, 29-30. Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM This argument misses the mark. The court did nothing more than recognize that the “reasonable judgment” standard inherently entails some measure of judicial “deference” to the record custodian. Such deference is not only consistent with but is required by the statute. The Legislature conferred on the record custodian the duty to determine, in the first instance, whether disclosure of a record is likely to jeopardize public safety, subject to a judicial inquiry as to whether the custodian’s determination was “reasonable.” The superior court did not suggest – and the Department does not contend – that a record custodian has unfettered discretion in invoking the public safety exemption; in all cases, the custodian’s determination that disclosure would likely jeopardize public safety must be “reasonable.” 14 14 PETA seizes on the superior court’s statement that the terms “reasonable judgment” and “likely to jeopardize” involve “subjectivity.” A. 190. PETA argues that the applicability of the exemption does not depend on “an agency’s subjective belief about the existence of a risk” and that a court must apply an “objective” standard. PETA Br. at 25-30. The Department agrees that an agency’s “subjective” state of mind is not relevant to the analysis; it was for that very reason that the Department opposed the discovery sought by PETA, much of which was aimed at eliciting the Department’s “state of mind” when it invoked the exemption. It is clear from the decision that, notwithstanding its use of the word “subjectivity” in one instance, the court did not inquire into the Department’s “subjective belief” but 34 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM With that standard of review in mind, the court proceeded to consider whether the Department had exercised “reasonable judgment” in invoking the public safety exemption, ultimately concluding that it had done so. The proper focus in this inquiry is on the materials the Department considered when it made its decision. The court therefore was correct in placing particular emphasis on the VHA memorandum, which, in and of itself, established that the Department exercised “reasonable judgment” in determining that disclosure of the information in the health certificates would likely jeopardize public safety. As noted above, the VHA memorandum cited reports of “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.” Id. at 218. The memorandum described “foreseeable harm” resulting from the release of personal information concerning individuals involved in animal research, due to “the inability to adequately protect these individuals when there [are] known attacks against those involved in animal research as documented in the news media.” Id. at 219; see also id. (the release of identifying information would “expos[e] them to potential attacks rather considered only whether it was “reasonable” for the Department to invoke the exemption. A. 189-95. 35 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM and harassment because it would essentially reveal who they are and where they work, live, etc.”). Given these cited concerns, and given the presumptive weight that should be accorded the views of a federal agency on a national safety issue, the court was correct in concluding that the Department, which based its determination on the federal directive, had exercised reasonable judgment in determining that the public safety exemption applied. As the court explained, the Department had demonstrated that the health certificates at issue contained information about “the importation of nonhuman primates,” which “are commonly used for animal research” and, in addition, that “animal research conducted on non-human primates has been the target of extremist groups and criminal activities throughout the United States.” Id. at 194. Therefore, it was mere common-sense for the court to observe that the information in the health certificates – identifying persons or facilities “engaged to some degree in the transport of non-human primates” – if disclosed, “could assist an individual or organization in executing an act of criminality.” Id. at 194, 196. In this age of the internet, disclosure of the name and work address of an animal researcher could readily enable someone intent on targeting that researcher to also obtain information about the researcher’s home 36 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM address, further increasing the risk to public safety. PETA argues that the materials that it submitted in superior court “refute[d]” the VHA memorandum, “creating an issue of fact that was improper for the court to resolve.” Id. at 32-33. PETA identifies this “issue of fact” as the extent of the “safety risk of disclosing unredacted health certificates.” 33. Id. at PETA’s argument rests on a misunderstanding of the nature of the superior court’s inquiry. The superior court was not called upon to make a de novo factual determination, based on a full-fledged evidentiary hearing, concerning the precise extent to which disclosure of the information would jeopardize public safety. Rather, the court was called upon to resolve the legal question whether the Department exercised “reasonable judgment” in finding that disclosure would likely cause such a risk, based on materials that the Department had considered and any judicially-noticeable materials. This follows not just from the public safety exemption’s “reasonable judgment” wording but also from the fact that the Public Records Law requires the record custodian to make its determination quickly. G.L. c. 66, § 10(b). PETA also argues that the VHA memorandum does not “provide any basis” from which to verify the “veracity” or “credibility” of the reports of violence that are described in the memorandum. 37 PETA Br. at 33. Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM But given the authoritative nature of the VHA directive, the superior court correctly found that the Department could reasonably rely on that federal command in deciding that the exemption applied; in responding to a public records request, the Department was not required to investigate the sources of information underlying the VHA directive. It was entitled to rely on that agency’s national perspective and greater access to information, particularly where the Public Records Law required it to make its decision on a tight timeline, and particularly when issues of safety and security were involved. In challenging the applicability of the public safety exemption, PETA also points out that information concerning animal research facilities and researchers is available on several websites. Br. at 33-34. PETA But the availability of information concerning other animal research facilities did not create a dispute of material fact, for the simple reason that the Department did not dispute it. On this point, the court noted that PETA’s uncontested submissions showed the existence of publicly-available information on the internet, including some federal directories identifying facilities and persons that conduct animal research. A. 193-95. But as the court correctly reasoned, the availability of that information “does not obviate the 38 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM 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.” Id. at 195. Put simply, the fact that other entities somewhere in the United States have disclosed information that may jeopardize public safety there does not provide a reason for the Department to have created the same risk in the Commonwealth, given the fact that the Legislature saw fit to enact a Massachusetts-specific public safety exemption. The Department was not required to follow the lead of other entities that were less protective of public safety. 15 D. Additional Materials Considered by the Superior Court Confirmed that the Department’s Determination Was Reasonable. The superior court also properly considered information that, while not directly relied on by the Department in making its determination, provided a further context in which the court could assess the 15 PETA places undue emphasis on the fact that, in early 2013, the Massachusetts Division of Fisheries and Wildlife provided unredacted health certificates in response to a similar records request by PETA. Id. at 33-34; A. 286. The Department is not bound by the determination of the Division of Fisheries and Wildlife, which almost certainly was unaware of the VHA directive, as the directive was issued only 13 days before the Division made its determination. See A. 218 (VHA memorandum, dated January 30, 2013); id. at 286 (Division’s public records response, dated February 12, 2013). 39 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM reasonableness of the Department’s determination. This additional information, cited in the Department’s memorandum of law, consisted mainly of legal authority in the form of excerpts from the legislative history of AETA, which “highlight[ed] significant acts of domestic terrorism by animal rights groups” against researchers and research facilities, and case law describing violence by animal rights activists, including arson, firebombing of cars and structures, and death threats against scientists and others. The Department also cited a news excerpt from 2008 providing, as one example of such violence, an account of researchers in California whose cars and homes had been firebombed and who had received death threats and letters with poisoned razors. A. at 87-95. 16 Contrary to PETA’s argument, these materials did not constitute “evidence,” and they did not create a disputed issue of fact. PETA Br. at 36-39. They merely provided a useful backdrop for the court to understand the policy reflected in the VHA memorandum, 16 The Department’s superior court memorandum provides a further discussion of these additional materials, see A. 88-95, including a discussion of United States v. Fullmer, 584 F.3d 132 (3d Cir. 2009) (affirming convictions under AETA and describing violence by animal rights activists against a New Jersey research laboratory that conducted animal testing on primates); and Government’s Sentencing Memorandum in United States v. Rodney Adam Coronado, dated July 31, 1995 (W.D. Mich. No. 97-CR-116) (reproduced at A. 262-81). 40 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM and they confirmed the reasonableness of the Department’s determination. The superior court could have upheld the Department’s determination without consideration of any of these additional materials cited by the Department. In any event, the materials did not give rise to a “factual dispute” about the “present risk of harm” in Massachusetts from disclosure of the redacted information, and the superior court did not “engage[] in impermissible fact finding” concerning these matters, as it did not in fact make factual findings concerning the additional materials. 38 n.11. PETA Br. at 36, Rather, as is evident from the superior court’s discussion of the materials, see A. 192, the court considered them merely as context for assessing the reasonableness of the Department’s determination. 17 III. THE SUPERIOR COURT ALSO PROPERLY HELD THAT THE PRIVACY EXEMPTION APPLIED TO THE REDACTED INFORMATION INSOFAR AS IT CONCERNED INDIVIDUAL PERSONS. Application of 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. of Boston, 419 Mass. 17 As the Department made clear, its purpose in submitting the additional materials was merely to support the reasonableness of its determination, “not for the purpose of establishing the facts underlying any particular terrorist attacks against animal research facilities.” A. 87-88 n. 10. 41 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM 852, 858 (1995) (“Police Comm. of Boston”). In this regard, once it is established that disclosure of information requested under the Public Records Law will constitute an invasion of privacy, and that the privacy exemption thus may apply, the party seeking disclosure, and not the custodian, must demonstrate that “the public interest in obtaining information substantially outweighs the seriousness of any invasion of privacy.” Id. at 858 (internal quotation marks and citation omitted); Champa, 473 Mass. at 96. Regarding the initial determination of a privacy interest, the Supreme Judicial Court has explained: In identifying the existence of privacy interests, we have suggested for consideration: whether disclosure would “result in personal embarrassment to an individual of normal sensibilities,” whether the materials sought “intimate details” of a “highly personal” nature, and whether “the same information is available from other sources.” In Re Subpoena Duces Tecum, 445 Mass. 685, 688-89 (2006) (emphasis added) (internal citations omitted). These same considerations also necessarily inform the assessment of the seriousness of the invasion of privacy in the subsequent “balancing” of interests. In contrast, the public interest that should be considered in the “balancing” is very specific: the general public’s interest “in knowing whether public servants are carrying out their duties in an efficient and law-abiding manner.” Police Comm’r of Boston, 419 42 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM Mass. at 858 (internal citation and quotation marks omitted). Under the balancing test, disclosure is required only where the public interest “substantially outweighs” the privacy interest, with the person seeking the records bearing the burden of making that showing. omitted). Id. (internal citation and quotation marks And what is considered is the “public’s right to know as reflected in the [public records law],” Torres v. Atty’ Gen’l, 391 Mass. 1, 9 (1984) (emphasis added), rather than the individual interests that a particular requester may identify. Allen v. Holyoke Hosp., 398 Mass. 372, 380-81 (1986). The superior court correctly held that a privacy interest exists in the information identifying names, addresses, and telephone numbers of individuals on the health certificates, and that PETA had not demonstrated that the public interest in disclosure “substantially outweighs” that privacy interest. 196-97. 18 A. The court cited this Court’s recognition that, although “names and home addresses are not inherently private or personal in nature,” each case must be decided based on the particular circumstances involved, and thus “‘the same information about a 18 Because the privacy exemption by its terms applies to information “relating to a specifically named individual,” without reference to location, the court properly held that the privacy exemption applied to individual persons regardless of whether they were located within or outside Massachusetts. 43 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM person, such as his name and address, might be protected against disclosure as an unwanted invasion of privacy in one context and not in another.’” Georgiou v. Commissioner of the Dep’t of Industrial Accidents, 67 Mass. App. Ct. 428, 434 (quoting Torres v. Attorney Gen., 391 Mass. at 9), rev. denied, 447 Mass. 1114 (2006). Similarly, in enacting exemption (o) in 2004, the Legislature made the home addresses and home telephone numbers of Commonwealth employees exempt from the definition of public record. G.L. c. 4, § 7, cl. 26(o). Here, given the reality that the individuals identified on the health certificates “are engaged to some degree in the transport of non-human primates that are known to be used in animal research,” and that “animal research conducted on non-human primates has been the target of extremist groups and criminal activities,” the superior court correctly found that those individuals “have a considerable privacy interest in their identities, addresses, and telephone numbers.” A. 196-97; id. at 196 (noting that individuals involved in animal research “have been specifically targeted”). It is mere common sense to conclude that persons engaged in or affiliated with research involving primates have a weighty privacy interest – their personal safety – in the nondisclosure of information that would reveal their work 44 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM location and thereby subject them to the risk of physical harm and harassment. It was precisely for that reason that the federal VHA determined that, under FOIA’s own privacy exemption, 5 U.S.C. § 552(b)(6), VHA facilities should not release “any personal information about VHA personnel engaged in any way in animal research” due to the “foreseeable harm” that exists, i.e., “the inability to adequately protect these individuals” in light of “known attacks against those involved in animal research.” Id. at 218-219. Cf. G.L. c. 66, § 10(d) (providing that place of employment, as well as name and home address, of victims of crime, victims of domestic violence, and persons providing or training in family planning services, or place of employment of a family member of the foregoing, shall not be public records). On the other side of the ledger, the relevant public interest is the general public’s “interest in knowing whether public servants [in Massachusetts] are carrying out their duties in an efficient and lawabiding manner.” Police Comm’r of Boston, 419 Mass. at 858 (internal citation and quotation marks omitted). That interest is substantially diminished where, as here, PETA does not even allege that the information that it seeks, concerning facilities that conduct animal research or persons affiliated with 45 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM those facilities, would have any bearing on government functioning. As the superior court recognized, PETA has not suggested any manner in which information about the persons identified in the certificates “would further its own understanding of how public servants are carrying out their duties.” Id. at 197. Thus, while disclosure of information identifying facilities that received or sent primates might serve PETA’s own mission in obtaining information concerning how animal research is conducted, the disclosure would not serve the public interest in “knowing whether public servants are carrying out their duties in an efficient and law-abiding manner.” Cf. Lakin Law Firm, P.C. v. Federal Trade Comm’n, 352 F.3d 1122, 1125 (7th Cir. 2003) (FOIA privacy exemption applied to law firm’s request to FTC seeking identities of consumers who had complained of bogus charges on their credit-card statements, since release of consumers’ identities would not contribute to scrutiny of FTC’s performance of its statutory duties), cert. denied, 542 U.S. 904 (2004). 19 Any purported public interest in disclosure of the animal research facilities and persons identified in the health certificates 19 Because the Public Records Law “is patterned after” FOIA, the Court “may look . . . to Federal case law for guidance.” Georgiou, 67 Mass. App. Ct. at 434 n.6. 46 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM certainly would not “substantially outweigh” the significant privacy interests at issue. PETA nevertheless argues that the persons identified in the certificates have no privacy interest to begin with, and that the superior court therefore should not have weighed privacy interests against any public interest in disclosure. at 41-45. PETA Br. In support of its argument, PETA cites Pottle v. School Comm. of Braintree, 395 Mass. 861 (1985), and Cape Cod Times v. Sheriff of Barnstable County, 443 Mass. 587 (2005), which held, respectively, that the privacy exemption did not apply to the names and home addresses of school employees and reserve deputy sheriffs. But both of those cases concerned public employees, who “by virtue of their public employment, have diminished expectations of privacy.” Pottle, 395 Mass. at 866; see also Georgiou, 67 Mass. App. Ct. at 435-36. Here, in contrast, PETA has made no suggestion that the persons identified in the health certificates are public employees. Moreover, by virtue of G.L. c. 4, § 7, cl. 26(o), public school employees’ home addresses and telephone numbers now are exempt from the definition of public records. 20 In addition, neither of the above 20 General Laws c. 4, § 7, cl. 26(o) exempts, from the definition of “public records,” home addresses and 47 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM cases cited by PETA addressed the privacy exemption in the context of the possibility of violence or other threats to personal safety present here. 21 Where such a possibility does exist, and the Legislature has foreseen it, the Legislature itself has exempted the information from disclosure. See G.L. c. 66, § 10(d). 22 While disclosure of names and addresses might not unduly invade privacy in some contexts, that is not the case here, given the demonstrable risk to persons engaged in animal research. See, e.g., Lesar v. United States Dep’t of Justice, 636 F.2d 472, 487-88 home telephone numbers of Commonwealth employees as well as employees of political subdivisions. 21 See Pottle v. School Committee of Braintree, 395 Mass. at 864-67 (names and home addresses of public school teachers were not exempt under privacy exemption, where same information was already available from other sources such as telephone directories); Cape Cod Times v. Sheriff of Barnstable County, 443 Mass. 587 (2005) (names and addresses of reserve sheriffs were not exempt; reserve sheriffs exercised no law enforcement functions and so were not within the protection of G.L. c 66, § 10(d) (exempting home address and telephone number of law enforcement and other designated public safety officials)). 22 General Laws c. 66, § 10(d) exempts, from the definition of “public record,” home addresses and home telephone numbers of public safety personnel including persons employed in law enforcement, in the department of children and families, and in the criminal justice system; also exempting home address and telephone number or place of employment of victims of adjudicated crimes, victims of domestic violence, and persons providing family planning services. 48 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM (D.C. Cir. 1980) (FOIA exemption for law enforcement records the disclosure of which would “constitute an unwarranted invasion of personal privacy” applied where disclosure of names of FBA officers “could subject them to annoyance or harassment”). PETA also asserts some of the same arguments that it raises in discussing the public safety exemption, pointing to the publicly-available information on some websites that identify institutions or particular persons engaged in animal research somewhere in the United States. PETA Br. at 43-44. But PETA does not suggest that the identities of the same persons identified in the certificates at issue here have already been disclosed through those websites. Contrast Pottle v. School Committee of Braintree, discussed supra at 47-48; see also Champa v. Weston Public Schools, 473 Mass. at 96 (in identifying existence of privacy interests, one factor is “whether the same information is available from other sources”) (2015) (emphasis added). The fact that there is some publicly-available information about animal research conducted elsewhere in the United States, having nothing to do with the particular individuals identified in the health certificates at issue, does not render the privacy exemption inapplicable here. PETA also argues that the fact that the Division of Fisheries and Wildlife provided unredacted copies 49 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM of health certificates containing similar information in 2013 demonstrates that the individuals listed in the certificates at issue here will not suffer any “embarrassment” if their names and addresses are disclosed. PETA Br. at 43. But the fact that a different state agency disclosed similar information, on an isolated occasion and almost certainly without the benefit of authoritative federal guidance to the contrary, does not suggest that the court erred in finding that the privacy exemption does apply here. CONCLUSION For the foregoing reasons, this Court should affirm the judgment of the superior court. Respectfully submitted, MAURA HEALEY ATTORNEY GENERAL /s/ Amy Spector Amy Spector BBO No. 557611 Assistant Attorney General One Ashburton Place Boston, MA 02108 617-963-2076 amy.spector@state.ma.us Date: September 2, 2016 CERTIFICATION PURSUANT TO MASS. R. APP. P. 16(k) I certify that the foregoing brief complies with all rules of court pertaining to the filing of briefs, including, but not limited to, Mass. R. App. P. 16 and 20. /s/ Amy Spector_____________ Amy Spector 50 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM ADDENDUM G.L. c. 4, § 7...............................Addendum 1 G.L. c. 66, § 10............................Addendum 14 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM General Laws: CHAPTER 4, Section 7 Page 1 of 13 Print PART I ADMINISTRATION OF THE GOVERNMENT TITLE I JURISDICTION AND EMBLEMS OF THE COMMONWEALTH, THE GENERAL COURT, STATUTES AND PUBLIC DOCUMENTS CHAPTER 4 STATUTES Section 7 Definitions of statutory terms; statutory construction Section 7. 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 officer 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 governments shall include the mayor of a city and the board of selectmen of a town unless some other local office 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 office 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 government shall include a written instrument adopted, amended or revised pursuant to the provisions of chapter forty-three B which establishes and defines the structure of city and town government for a particular community and which may create local offices, and distribute powers, duties and responsibilities among local offices and which may establish and define certain procedures to be followed by the city or town government. 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 https://malegislature.gov/Laws/GeneralLaw^/Paifl^t^/clrapter4/Section7/Print 8/25/2016 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM General Laws: CHAPTER 4, Section 7 Page 2 of 13 chapter forty-three B unless any such special law contains a specific prohibition against such action. Fifth A, "Chief administrative officer", 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 office is designated to be the chief administrative officer under the provisions of a local charter. Fifth B, "Chief executive officer", when used in connection with the operation of municipal governments shall include the mayor in a city and the board of selectmen in a town unless some other municipal office is designated to be the chief executive officer 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, "Coterminous", shall mean, when applied to the term of office of a person appointed by the governor, the period from the date of appointment and qualification to the end of the term of said governor; provided that such person shall serve until his successor is appointed and qualified; and provided, further, that the governor 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 governor shall show cause for such removal, and that during the period following receipt of such notice and until final determination said person shall receive his usual compensation but shall be deemed suspended from his office. Seventh, "District", when applied to courts or the justices or other officials 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 offices, departments, boards, commissions, institutions or undertakings of the commonwealth, shall mean the year beginning with July first 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: (i) 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; (iii) pari-mutuel wagering on horse races under chapters 128A https ://malegislature.gov/Laws/GeneralLaw&^Eli^]'il]!M/C^iapter4/Section7/Print 8/25/2016 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM General Laws: CHAPTER 4, Section 7 Page 3 of 13 and 128C and greyhound races under said chapter 128C; (iv) a game of bingo conducted under chapter 271; and (v) 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 sufficient 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 filed and registered. Eighteenth, "Legal holiday" shall include January first, 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 first Monday in September, the second Monday in October, and Thanksgiving 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-five of chapter one hundred and fortynine 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 fifteenth, in honor of Peter Francisco day, May twentieth, in honor of General Marquis de Lafayette and May twenty- ^/PS &Wit'l'lf/cliapter4/Section7/Print https://malegislature.gov/Laws/GeneralLaw - 8/25/2016 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM General Laws: CHAPTER 4, Section 7 ninth, in honor of the birthday of President John F. Kennedy. 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 financial 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 "month" 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-first, "Oath" shall include affirmation in cases where by law an affirmation may be substituted for an oath. Twenty-second, "Ordinance", as applied to cities, shall be synonymous with by-law. Twenty-third, "Person" or "whoever" shall include corporations, societies, associations and partnerships. Twenty-fourth, "Place" may mean a city or town. Twenty-fifth, "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, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose, or any person, corporation, association, partnership or other legal entity which receives or expends public funds for the payment or https://nialegislature.gov/Laws/GeneralLaws/Par^Piyef/ciiapter4/Section7/Print 8/25/2016 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM General Laws: CHAPTER 4, Section 7 Page 5 of 13 administration of pensions for any current or former employees of the commonwealth or any political subdivision as defined in section 1 of chapter 32, unless such materials or data fall within the following exemptions in that they are: (a) specifically or by necessary implication exempted from disclosure by statute; (b) 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 governmental functions requires such withholding; (c) personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; (d) 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; (e) notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit; (f) investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials 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; (g) trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality; but this subclause shall not apply to information submitted as required by law or as a condition of receiving a governmental contract or other benefit; (h) 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; https://malegislature.gov/Laws/GeneralLaws/?'arlM^llef/C^apter^Sectiony/Print 8/25/2016 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM General Laws: CHAPTER 4, Section 7 Page 6 of 13 (i) appraisals of real property acquired or to be acquired until (1) a final 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; (j) the names and addresses of any persons contained in, or referred to in, any applications for any licenses to carry or possess firearms issued pursuant to chapter one hundred and forty or any firearms identification cards issued pursuant to said chapter one hundred and forty and the names and addresses on sales or transfers of any firearms, rifles, shotguns, or machine guns or ammunition therefor, as defined in said chapter one hundred and forty and the names and addresses on said licenses or cards; [There is no subclause (k).] (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 instrument; (m) contracts for hospital or related health care services between (i) any hospital, clinic or other health care facility operated by a unit of state, county or municipal government and (ii) a health maintenance organization arrangement approved under chapter one hundred and seventy-six I, a nonprofit 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-five or any legal entity that is self insured and provides health care benefits to its employees. (n) records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (b) of section 10 of chapter 66, is likely to jeopardize public safety. (o) the home address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, 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 government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee https://malegislature.gov/Laws/GeneralLaw&^irl^ftilM/(5iapter4/Section7/Print 8/25/2016 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM General Laws: CHAPTER 4, Section 7 Page 7 of 13 organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in-section 167 of chapter 6. (p) 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 government agency which maintains records identifying persons as falling within the categories listed in subclause (o). (q) Adoption contact information and indices therefore of the adoption contact registry established by section 31 of chapter 46. (r) Information and records acquired under chapter 18C by the office of the child advocate. (s) trade secrets or confidential, 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. (t) statements filed under section 20C of chapter 32. (u) 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 Twenty-ninth.] Thirtieth, "Spendthrift" shall mean a person who is liable to be put under guardianship on account of excessive drinking, gaming, idleness or debauchery. https://malegislatae.gov/Laws/GeneralLaw&$a]l^iHM/(^apter4/Section7/Print 8/25/2016 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM General Laws: CHAPTER 4, Section 7 Page 8 of 13 Thirty-first, "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 commonwealth. "State treasurer" or "treasurer of the commonwealth" shall mean the treasurer and receiver general as 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 affirm in cases in which an affirmation may be substituted for an oath. When applied to public officers who are required by the constitution to take oaths therein prescribed, it shall refer to those oaths; and when applied to any other officer it shall mean sworn to the faithful performance of his official duties. Thirty-fourth, "Town", when applied to towns or officers or employees thereof, shall include city. Thirty-fifth, "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 fidelity bond of an officer or employee of a county, city, town or district, shall mean a surety company authorized to transact business in the commonwealth. Forty-first, "Population", when used in connection with the number of inhabitants of a county, city, town or district, shall mean the population as determined by the last preceding national census. fThere is no clause Forty-second,] https://malegislature.gov/Laws/GeneralLav^/^)a^'Pitle'[/(?hapter4/Section7/Print 8/25/2016 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM Page 9 of 13 Forty-third, "Veteran" shall mean (1) any person, (a) whose last discharge or release from his wartime service as defined herein, was'under honorable conditions and who (b) 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 conflict 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 (a) whose last discharge from active service was under honorable conditions, and who (b) 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 II 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 "WAAC" as defined in this clause during any of the periods of time described herein or for which such medals described below are awarded. "Spanish War veteran" shall mean any veteran who performed such wartime service between February fifteenth, eighteen hundred and ninety-eight and July fourth, nineteen hundred and two. "World War I veteran" shall mean any veteran who (a) performed such wartime service between April sixth, nineteen hundred and seventeen and November eleventh, nineteen hundred and eighteen, or (b) has been awarded the World War I Victory Medal, or (c) performed such service between March twenty-fifth, nineteen hundred and seventeen and August fifth, 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 II 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. https://malegislatiire.gov/Laws/GeneralLawM^artI^lfM/dLapter4/Section7/Print 8/25/2016 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM General Laws: CHAPTER 4, Section 7 Page 10 of 13 "Korean veteran" shall mean any veteran who performed such wartime service between June twenty-fifth, nrneteen hundred and fifty and January thirty-first, nineteen hundred and fiftyfive, 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 fiscal year 2003. "Korean emergency" shall mean the period between June twenty-fifth, nineteen hundred and fifty and January thirty-first, nineteen hundred and fifty-five, both dates inclusive. "Vietnam veteran" shall mean (1) any person who performed such wartime service during the period commencing August fifth, nineteen hundred and sixty-four and ending on May seventh, nineteen hundred and seventy-five, 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 first, nineteen hundred and fifty-five 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-five 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-fifth, 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-fifth, nineteen hundred and eighty-three to December fifteenth, 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-first, nineteen hundred and ninety. "Persian Gulf veteran" shall mean any person who performed such wartime service during the period commencing August second, nineteen hundred and ninety and ending on a date to https://malegislature.gov/Laws/GeneralLaws?^artl!/'?'rtIeI/iSapter4/Section7/Print 8/25/2016 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM General Laws: CHAPTER 4, Section 7 Page 11 of 13 be determined by presidential proclamation or executive order and concurrent resolution of the Congress of the United States: — "WAAC" 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. None of the following shall be deemed to be a "veteran": (a) 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. (b) Any person who was discharged from the said armed forces on his own application or solicitation by reason of his being an enemy alien. (c) Any person who has been proved guilty of wilful desertion. (d) 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. . (e) 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 certified mail. Forty-fifth, "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 fire warden" shall mean the commissioner of environmental management or his designee. https://malegislature.gov/Laws/GeneralLaws^art^/?,yieI/iliapter4/Section7/Prmt 8/25/2016 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM General Laws: CHAPTER 4, Section 7 Page 12 of 13 Forty-seventh, "Fire fighter", "fireman" or "permanent member of a fire department", shall rnciude the chief or other uniformed officer performing similar duties, however entitled, and all other fire officers of a fire department, including, without limitation, any permanent crash crewman, crash boatman, fire controlman or assistant fire controiman employed at the General Edward Lawrence Logan International Airport, members of the 104th fighter wing fire department or members of the Massachusetts military reservation fire 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-first, "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. 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-fifth, "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- https://malegislature.gov/Laws/GeneralLaws9]^ar1^Wl/ifkpter4/Section7/Print 8/25/2016 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM General Laws: CHAPTER 4, Section 7 Page 13 of 13 related identity may be shown by providing evidence including, but not limited to, medical history, care or treatment ofthe gender-related identity, consistent and uniform assertion of the gender-reiated 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. littps://malegislature.gov/Laws/GeneralLaws/^art^/lL,y;feI/llapter4/Section7/Print 8/25/2016 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM General Laws: CHAPTER 66, Section 10 Page 1 of 3 Print ! PART I ADMINISTRATION OF THE GOVERNMENT : TITLE X PUBLIC RECORDS ; CHAPTER 66 PUBLIC RECORDS Section 10 Public inspection and copies of records; presumption; exceptions . Section 10. (a) Every person having custody of any public record, as defined 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 poiice, the Massachusetts bay transportation authority police or any municipal police department or fire department: for preparing and mailing a motor vehicle accident report, five dollars for not more than six pages and fifty cents for each additional page; for preparing and mailing a fire insurance report, five dollars for not more than six pages plus fifty 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, fifty cents per page. A page shall be defined as one side of an eight and one-half inch by eleven inch sheet of paper. (b) 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 office of the custodian or mailed via first 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 finance with respect to any officer or employee of any agency, executive office, 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 https://malegislature.gov/Laws/GeneralLaws^art^/?,ilfeX?Aapter66/S ection10/Print 8/25/2016 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM General Laws: CHAPTER 66, Section 10 Page 2 of 3 an administrative order under this section, the supreme judicial or superior court shall have jurisdiction to order compliance. (c) In any court proceeding pursuant to paragraph (b) there shall be a presumption that the record sought is public, and the burden sfiall be upon the custodian to prove with specificity the exemption which applies. (d) 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 office, a brief printed statement that any citizen may, at his discretion, obtain copies of certain public records from local officials 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 attorneys including the keeper of the records of the firearms records bureau of said department, or any licensing authority, as defined 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 firearms, rifles, shotguns, machine guns and ammunition therefor, as defined in said chapter one hundred and forty and names and addresses of persons licensed to carry and/or possess the same to any person, firm, corporation, entity or agency except criminal justice agencies as defined in chapter six and except to the extent such information relates solely to the person making the request and is necessary to the official 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 nonprofit organization for retired public employees under chapter 180 or to a criminal justice agency as defined 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 https://malegislature.gov/Laws/GeneralLawsPj^art^/'?'illex)(5iapter66/Sectionl 0/Print 8/25/2016 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM General Laws: CHAPTER 66, Section 10 Page 3 of 3 custody of a government agency which maintains records identifying such persons as falling within such categories and shall not be disclosed. . https://malegislature.gov/Laws/GeneralLaws^a^:^flleX^Aapter66/Sectionl 0/Print 8/25/2016 Massachusetts Appeals Court Case: 2016-P-0074 Filed: 9/2/2016 12:14:08 PM CERTIFICATE OF SERVICE I, Amy Spector, certify that I served the attached Brief this 2nd day of September, 2016, by delivering two paper copies of the Brief by first class mail, postage pre-paid, to David Milton, Law Offices of Howard Friedman, 90 Canal Street, 5th Floor, Boston, MA 02114 (appellant’s counsel); Martina Bernstein, PETA Foundation, 1536 16th Street, N.W., Washington, D.C. 20036 (appellant’s counsel); and Laura Rotolo and Jessie Rossman, ALCU Foundation of Massachusetts, 211 Congress Street, Boston, MA 02110 (counsel for amicus curiae American Civil Liberties Union of Massachusetts). /s/Amy Spector __________ Amy Spector Assistant Attorney General