The animal rights group PETA is set to argue an important case that will determine the limits of the so-called public safety exemption to the public records law
In early February, the animal rights group People for the Ethical Treatment of Animals will argue one of the most consequential public records cases in recent memory before the Massachusetts Supreme Judicial Court. The case will determine 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.
“This is the first case dealing specifically with [the public safety exemption] that has gone to the Supreme Judicial Court,” says Laura Rótolo, a lawyer with the American Civil Liberties Union of Massachusetts who co-wrote an amicus brief supporting PETA. “[The exemption] was created with a very narrow purpose after 9/11, and I think since then it has been interpreted by [government] agencies in a way that’s much broader than what the Legislature intended.”
Since 2014, PETA 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 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.
But PETA argues the public safety claims are overblown and that there’s a public interest in releasing the documents. “Each year, in tax-funded Massachusetts laboratories, thousands of monkeys have been cut open and sickened—and many have been killed. The public has a right to know where these animals came from, where they went, and how they got there,” says Kathy Guillermo, senior vice president of laboratory investigations at PETA.
Data collected by the U.S. Department of Agriculture show how many non-human primates and other animals are being used for testing by various entities in Massachusetts. According to the 2015 report by the USDA, a total of 7,270 non-human primates were experimented on while 1,570 were held for future experimentation. The most active organization was Charles River Laboratories, Inc, which experimented on 5,423 primates and held an additional 1,341. Next was Harvard Medical School, which experimented on 1,135 primates and held an additional 29. Many of these animals were subjected to painful procedures that require pain-relieving drugs.
Guillermo says the state health inspection records would tell PETA more: “The records that we’ve requested would also help us fill in some of the details to construct biographies of the individual non-human primates who are used and killed in Massachusetts laboratories—tracing their journeys from monkey factory farms in Southeast Asia or from their forest homes in Mauritius to warehouse facilities in the US and then to laboratories in Massachusetts. All the monkeys represented by numbers in the US Department of Agriculture’s report had a mother, a history, and a journey—and we’re interested in piecing some of that information together so that the public can understand the full scope of what’s involved in the use of primates in experiments.”
She adds: “[Public records] are crucial to our work. Often there is no other way to know what a facility is doing to animals and if they’ve violated animal protection laws and regulations while on federally- or state-funded contracts. We will file suit, and frequently do, when we are denied records that we have the right to obtain.”
To support redacting the health inspection records, the agricultural resources department cited a memo from the US Veterans Health Administration that says “not to release any personal information about VHA personnel engaged in any way in animal research” due to unspecified reports of attacks on researchers. To fight the redactions, PETA first sent an administrative appeal to the Massachusetts supervisor of records, but the supervisor sided with the agricultural resources department. Next, PETA filed a lawsuit in Suffolk Superior Court, but Justice Christopher Muse again sided with the department. The animal rights group then appealed to a state appeals court, but the SJC took the case up sua sponte (of its own accord).
THE LIMITS OF THE ‘PUBLIC SAFETY’ EXEMPTION
David Milton, a Boston-based civil rights lawyer who is representing PETA, says there are two major problems with Justice Muse’s ruling. The first is that the judge ruled that the public safety exemption applies to veterinary inspection records, which Milton says is based on an incorrect reading of the law. “The terms of the exemption itself make clear that it applies only to infrastructure and security measures as opposed to anything a records custodian might think violates public safety,” he says.
At the time the 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 Massachusetts attorney general’s office, which is representing the agricultural resources department, argues that the wording of the exemption means it must be interpreted broadly to encompass most records that have some connection to public safety. But, as PETA points out, the SJC has previously ruled that “exemptions must be strictly and narrowly construed.” The animal rights group argues that if the SJC sides with the agricultural resources department, it “would bring virtually limitless records into the scope of an exemption meant to protect infrastructure and security measures.”
To support its position, PETA dug up a letter from former acting Gov. Jane Swift, who signed the exemption into law. Swift wrote that the exemption “carves out a very narrow exemption to the definition of public records for those materials pertaining to public safety including threat assessments, security plans, and certain records depicting critical infrastructure.”
‘A HEIGHTENED LEVEL OF DEFERENCE’
The other major issue with Justice Muse’s ruling, according to David Milton, is that the judge
held 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.”
But according to PETA, Muse “turned these terms on their head.” Laura Rótolo, the ACLU lawyer, agrees: “If you read the text of the exemption, there isn’t a burden shifting there … I would read [the exemption] to say the exact opposite—that the agency has to act reasonably, and they can’t just withhold records unreasonably, and that that certainly does not give any higher level of deference to the agency’s decision.”
During the litigation process, the agricultural resources department explained that it used three documents when it decided to redact the records. One was the Veterans Health Administration memo. Another was the department’s own internal memo. And the third was a prior decision by the supervisor of records. In court, the agency also submitted excerpts of the legislative history of the federal Animal Enterprise Terrorism Act, which discussed attacks committed up through 2005, and a 2008 news report from California.
PETA submitted its own evidence showing that veterinarians, researchers, and animal research facilities routinely post their names and contact information online. The group also showed that the Massachusetts Department of Fish and Game discloses animal health certificates without redacting them. But Justice Muse was not impressed. He stated that while some information can be found online, it “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.”
Justice Muse ultimately made his decision based on the Veterans Health Administration memo, the AETA legislative history, and the news report submitted by the agricultural resources department. But PETA argues that it should have been allowed discovery, the process by which one party can obtain evidence from the other party in a lawsuit. PETA also argues memos that “merely parrot the Department’s conclusion” and old news stories shouldn’t be sufficient to justify redacting records.
According to PETA: “[T]he mere fact that some people or buildings involved with animal research activities have been victims of crime cannot possibly bring all references to such people or buildings … within the scope of the exemption … Since no profession, industry, or geographic location is completely immune from crime, [Justice Muse]’s reasoning, if accepted, would allow Commonwealth officials to throw a blanket of secrecy over virtually any conduct they wish to keep from public scrutiny, thereby eviscerating the narrow scope of exemptions to the Public Records Law.”
In a strange twist, the attorney general’s office argues that it doesn’t even matter if there’s a real public safety risk posed by releasing the information. According to its court brief: “[T]he 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 jeopardize public safety’ … [T]he court did not need to resolve any factual dispute about the actual likelihood of a public safety risk (emphasis in original).”
Milton summarizes the AGO’s argument this way: “They would have the court only look at [the agency’s] own review process, whatever it was, as opposed to looking to objective evidence in the real world as to whether disclosure of a particular record is in fact actually likely to jeopardize public safety … They would have the court ignore objective reality.”
Muse’s ruling will be a disaster for the public records law if it is upheld by the SJC. As David Milton puts it: “The deference [the ruling] gives is basically carte blanche to withhold records on the basis of the exemption and gives very little room for challenges to that … It gives [agencies] more or less unfettered discretion to withhold records, and if it’s interpreted broadly and if agencies are given the amount of deference that the agency here is arguing for, then it’s really an exception that threatens to swallow public records law as a whole.”
The purpose of the public records law is to promote transparency and understanding of government. Introducing broad exemptions that can apply to virtually any document and allowing agencies to withhold records based on their subjective judgments about what information the public should be allowed to view runs completely counter to that purpose. It’s clear that the SJC should reverse Muse’s ruling.
This column is the second in a special two-part series on the public safety exemption to the Massachusetts public records law. Part one focused on MetroWest Daily News reporter Jim Haddadin’s year-long fight to obtain a list of databases that the Massachusetts Office of Information Technology maintains on behalf of various state agencies. MassIT had claimed, rather dubiously, that it had to withhold the list to protect public safety. In early December, shortly after the piece was published, MassIT finally ponied up a copy of the list Haddadin was after. “It’s got a load of redactions, but I think it pretty much satisfies what I was looking for,” Haddadin says.
Broken Records is a column produced in partnership between the Boston Institute for Nonprofit Journalism and DigBoston. Follow @BINJreports and @BrokenRecordsMA on Twitter for upcoming installments and other news.
Andrew Quemere has been making public records requests in Massachusetts for more than a decade. He writes The Mass. Dump Dispatch, a newsletter about public records. Subscribe to read about the latest developments in government transparency. Follow him on Twitter @andrewqmr.