BROKEN RECORDS: MONKEY WRENCHING

A rare win on the public records front in Mass

By Andrew Quemere


In Massachusetts, a state with a terrible track record on access to public information, any news about public records is usually bad news. But in an excellent turn of events, the Massachusetts Supreme Judicial Court’s ruling in a noteworthy public records lawsuit is being hailed by advocates as a huge win for transparency. The high court’s decision narrowly defines the limits of the so-called public safety exemption to the public records law, which was created to protect people, buildings, and infrastructure from terrorism and other threats — but has frequently been misused to withhold fairly mundane records.

Since 2014, the animal rights group People for the Ethical Treatment of Animals has been trying to get records from the state Department of Agricultural Resources related to the export and import of non-human primates, but the department has been steadfast in denying PETA’s request. The department did turn over 11 pages of interstate veterinary health inspection records, but it blacked out all information about the owners, sellers, and recipients of the animals, as well as the identities of veterinarians who inspected them. According to the department, disclosing the information would put the people and facilities involved in transporting the animals at risk because it would make it easier for animal rights extremists to carry out attacks.

PETA fought back by filing a lawsuit in Suffolk Superior Court, but Justice Christopher Muse sided with the department in a troubling ruling that could have had significant ramifications for public records access.

Muse ruled that the public safety exemption grants “a heightened level of deference to the keeper and supervisor of public records.” In practical terms, this means that courts shouldn’t second-guess the reasons agencies invoke the public safety exemption. That’s a big deal because the public records law explicitly states that there is a presumption in court that records are public; the burden is supposed to be on the agency to prove that records are exempt.

The public safety exemption allows agencies to withhold certain types of information that “in the reasonable judgment of the records custodian … is likely to jeopardize public safety.” According to Muse, “Such language as ‘reasonable judgment’ and ‘likely to jeopardize’ invoke a heightened level of subjectivity in the determination of the application of the exemption.”

However, the SJC reversed that ruling in a decision by Justice Barbara Lenk issued earlier this month. “Such language neither requires or even invites any heightened level of deference to the records custodian’s initial determination whether to disclose or withhold a record,” the ruling states.

Another problem the SJC had to resolve was the types of records that the exemption applies to. At the time PETA’s lawsuit was filed, the text of the exemption said it applies to “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 only thing that has changed since the suit was filed is that the exemption now also says it covers “cyber security.”)

The exemption is ambiguous because it lists specific types of records, but also includes the phrases “including, but not limited to” and “any other records.” The SJC concluded that the exemption is indeed “open, and not closed,” but it only applies to records that “are ‘likely to jeopardize public safety’ in a similar way to one of the examples listed in [the public safety exemption].” The court further ruled that the less a record resembles the types of records specified in the exemption, the greater the burden the agency has of showing that releasing the record poses a risk to public safety.

The Law Offices of Howard Friedman, which represented PETA in the case, issued a statement reading in part: “The opinion makes clear that courts will not rubber-stamp [public safety exemption] claims … The SJC agreed with our position, explaining that an agency cannot withhold records on public safety grounds based on unsubstantiated speculation. Rather, the agency must provide specific evidence that releasing the records presents a safety risk; this evidence must be particularly strong in cases like this one, where the records have nothing to do with infrastructure or security measures. The opinion is a victory for government transparency and accountability in an era in which these basic democratic values are under attack.”

The American Civil Liberties Union of Massachusetts, which filed an amicus brief supporting PETA, stated that “[t]he Court’s clarification about the narrow scope of [the public safety exemption] will contribute significantly to the public’s right to access documents that shed light on the workings of its government.”

Likewise, Henry Tran, Jeffrey Pyle, and Robert Bertsche — lawyers for the Boston law firm Prince Lobel — called the ruling “a victory for public records advocates … [that] should invigorate those who are working to take advantage of recent changes to the public records law that make it easier to fight for the public right to know.”

Meanwhile, PETA’s fight for the unredacted veterinary health inspection records continues. While the SJC’s decision was favorable to PETA, it did not determine whether the group will be granted access to the records. Instead, it remanded the case back to the Superior Court, which will now have to decide the issue using the SJC’s ruling as guidance.

Check out our prior coverage of this case here.

Broken Records is a column produced in partnership with the Boston Institute for Nonprofit Journalism. Follow @BINJreports and @BrokenRecordsMA on Twitter for upcoming installments and related news.