Top Massachusetts Court clarifies 9/11-era Public Records Exemption
The Massachusetts Supreme Judicial Court ruled that the public records exemption passed after the September 11, 2001 terrorist attacks protecting critical infrastructure documents from disclosure is to be interpreted narrowly, sending a public records case brought by People for the Ethical Treatment of Animals (PETA) back to the trial court for further proceedings.
The case, People for the Ethical Treatment of Animals, Inc. v. Department of Agricultural Resources, 2017 WL 2562868 (SJC-12207 June 14, 2017) centers on requests made by PETA to the Department of Agricultural Resources for public records concerning the “export and/or import of nonhuman primates in Massachusetts during 2013” and “alleged or claimed safety risks posed to animals (including but not limited to nonhuman primates), people and buildings involved with housing and transporting non-human primates.” The Department provided responsive interstate health certificates for nonhuman primates, but redacted certain types of information including (1) names and addresses of consignors and consignees (2) license and registration numbers, and (3) names, addresses, telephone numbers, and license numbers for veterinarians whose information appeared on the health certificates. PETA challenged the redactions to the supervisor of public records and ultimately filed an appeal under M.G.L. c. 66, § 10(b) to Superior Court. The Superior Court largely upheld the Department’s findings and PETA’s appeal to the Massachusetts Appeals Court was transferred to the Supreme Judicial Court by the top court’s request.
The Department initially justified its redactions solely on the basis of exemption (n) to the public records law (M.G.L. c. 4, § 7(26)(n)) and later added exemption (c) (M.G.L. c. 4, § 7(26)(c)) as an additional basis during the litigation.
Exemption (n) – relating to records that might compromise the security of buildings and infrastructure
At the time of PETA’s request for records, exemption (n) stated:
(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.
While exemption (n) was amended effective January 1, 2017, the language has not changed in any material way.
Exemption (n) permits withholding of public records that might compromise the security of buildings and infrastructure and was added in 2002 after the 9/11 attacks and is unique in the public records exemptions in that it contemplates the exercise of “reasonable judgment of the record custodian” in determining whether the disclosure of such records “is likely to jeopardize public safety.” Slip Opinion at 17. Recognizing that the scope of exemption (n) was a question of first impression, the Court applied standard tools of statutory construction, including an evaluation of the legislative history, to conclude that exemption (n) should be interpreted narrowly and in accordance with its “animating principle” of “protecting the public from terrorist attacks in a post-September 11, 2001, world….” Slip Opinion at 15.
With this in mind, the SJC announced a construction of the exemption based on two prongs. The first prong “probes whether, and to what degree, the record sought resembles the records listed as examples in the statute,” referring to the list that includes blueprints, plans, policies, procedures and schematic drawings. “The touchstone of this inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage’ and in that sense jeopardize public safety.” Id. at 17 (quoting a September 5, 2002 Memorandum from the Executive Office of Public Safety) (internal citation omitted).
The second prong “probes the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. “Because the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id.
The Court noted that the two prongs must be analyzed together because “there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating “reasonable judgment” – and vice versa.” Id. at 18. The Court also noted that although guidance on how to apply exemption (n) from the Secretary of the Commonwealth appears to indicate that inquiry into the requestor’s purpose for seeking a particular record is “uniquely” permitted under exemption (n), the Court wrote that although the issue is not directly before them in this case, “nothing we discovered in our review of the legislative history indicated an intent to depart radically from the typical public records procedure, which would not permit such an inquiry.” Id. at 17 fn 12.
Recognizing that the Superior Court judge did not have the benefit of the SJC’s interpretation of exemption (n), the high court vacated the decision and remanded to that court for further consideration of PETA’s request.
Exemption (c) – relating to personal information
Exemption (c) has been the subject of previously judicial review and permits the withholding of “personnel and medical files or information,” as well as “any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” Id. at 20 (citing G.L. c. 4, § 7, twenty-sixth (c)). The Court noted that exemption (c) requires a balancing test: “where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield.” Id. at 20 (citing Champa v. Weston Pub. Sch., 473 Mass. 86, 96 (2015)).
In evaluating the privacy interests, the Court has investigated three factors:
- Whether disclosure would result in personal embarrassment to an individual of normal sensibilities;
- Whether the materials sought contain intimate details of a highly personal nature; and
- Whether the same information is available from other sources.
Declaring that exemption (c) requires a “nuanced analysis,” the Court noted that the balancing test in this case “should account for different privacy interests in a home address versus a business address, and held by a public employee versus a private one.” Id. at 22, 24. Plus it must take into account whether the information is available from other sources. Id. at 24. Finally, the
Court viewed skeptically, but did not rule out, the Department’s suggestion that the risks to the personal safety of individuals from the release of requested information should be factored into the balancing test, stating:
Accordingly, we are unwilling to eliminate wholly the possibility that, in very limited circumstances where the department can identify specific information demonstrating that a significant risk to an individual’s personal safety is posed by the disclosure of a home address or telephone number, that non-dispositive factor can add weight to whatever privacy interest exists on that side of the balancing test.
In sending the case back to the Superior Court on this exemption, the SJC directed that court to evaluate:
- Whether the redacted information pertains to home or business addresses of public or private entities;
- Whether and to what extent that information is available from other sources; and
- Whether, and to what extent, the department can identify specific information demonstrating that a significant risk to an individual’s personal safety is posed by the disclosure of a home address or telephone number that may be among the redacted information.
The Court vacated the judgment in favor of the Department and remanded the case for proceedings consistent with the SJC’s opinion.