Bernstein, Martina v. Massachusetts Department of Agricultural Resources (SPR 20140301)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams June 23, 2014 Supervisor ofR ecords SPR14/301 Ms. Martina Bernstein PETA Foundation 501 Front Street Norfolk, VA 23510 Dear Ms. Bernstein: I have received your petition appealing the April 23, 2014 response of the Department of Agricultural Resources (Department) to your request for public records. G. L. c. 66, § 1O (b) (Supervisor of Public Records has authority to resolve public records appeals); see also 950 C.M.R. 32.08(2) (appeal process). Specifically, you requested a copy of: 1. All permits, licenses, health certificates, and other documentation related to the export and/or import of nonhuman primates in Massachusetts during 2013, and 2. All records referencing, reflecting or relating to alleged or claimed safety risks posed to animals (including but not limited to non-human primates), people and buildings involved with housing and transporting non-human primates. In her April23, 2014letter, Carol A. Szocik, a Paralegal at the Department informed you that the Department has no records responsive to your request number two. A record holder's duty to comply with requests for information extends only to those records which exist and are in his custody. See G. L. c. 4, § 7 (26). There is no obligation to create a record in response to a public records request. G. L. c. 66, § 10(a); 32 Op. Att'y Gen. 157, 165. The Department provided you with copies of interstate health certificates for non-human primates in response to your request number one. The Department has no further records responsive to your request number one. In her April23, 2014letter, Ms. Szocik informed you that the Department has redacted information contained in the health certificates such as the "Consignor/Consignee name and address, USDA license/registration number, name of the veterinarian and veterinarian's address, telephone number and license/accreditation numbers" pursuant to Exemption (n) ofthe Public Records Law. You appealed the redaction ofthese certificates. Exemption (n) Exemption (n) permits the withholding of: OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Martina Bernstein SPR14/301 Page Two June 23, 2014 records including, but not limited to, blue prints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measure, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons, buildings, structures, facilities, utilities, transportation or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the custodian, subject to review by supervisor of public records under subsection (b) of section 10 of chapter 66, is likely to jeopardize public safety. G. L. c. 4, § 7(26)(n) The Department posits that disclosure of the information that the Department redacted from the health certificates regarding the facilities could compromise the security of locations housing non-human primates, and those working in the facilities, thus increasing the risk of public safety ofthe animals as well as the people and buildings involved with housing and transporting the animals To support its argument, the Department provided you and this office with a copy of a January 30, 2013 memorandum published by the federal Department of Veterans Affairs Freedom of Information Act (FOIA) Office concerning guidance from the Veterans Health Administration (VHA) on disclosure of documents relating to personnel involved in animal research in response to an information or record request. The VHA facilities are instructed not to disclose the personal information about the researchers in order to protect these individuals from threatening behavior, harassment and potential physical attacks. Although the FOIA exemptions cited in the memorandum are not available to the Department as a means of responding to your request, the manner in which this information is treated by the federal government is persuasive when examining the Department's Exemption (n) claim. Accordingly, whereas the Department has provided you with the responsive records, and further whereas 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", I will consider this appeal closed. Supervisor of Records cc: Ms. Carol A. Szocik