Peard, Esq., Billy v. Massachusetts Department of Agricultural Resources (SPR 20140757)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 9, 2015 SPR141757 Ms. Carol A. Szocik Department of Agricultural Resources 251 Causeway Street, Suite 500 Boston, MA 02114-2151 Dear Ms. Szocik: I have received the petition of Billy Peard, Esq., Staff Attorney, Migrant Program of the Central-West Justice Center appealing the response of the Department of Agricultural Resources (Department) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Attorney Peard requested copies of records that contain names and addresses of dairy farmers licensed or registered in Massachusetts. G. L. c. 94, §§ 16B-C, 28. In a response dated December 3, 2014 the Department denied his request citing Exemption (n), the public safety exemption to the Public Records Law. G. L. c. 4 §7(26)(n). The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). In its response the Department justifies denial of access, stating that, as "critical components of the Massachusetts Food Supply infrastructure," release of dairy production information contained in the responsive records would "likely jeopardize public safety." The Department provided no other explanation other than the language of the exemption. This response does not contain the specificity required in a denial of access to public records. Accordingly, the Department is advised that to comply with the Public Records Law and its OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Carol A. Szocik SPR14/757 Page Two March 9, 2015 Regulations (Regulations) it must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. With specific respect to Exemption (n), a custodian may permit disclosure of otherwise exempt information when the purpose of the request is known. This is unique to Exemption (n) as otherwise the identity of requester and purpose of request play no role in the public status of government records. In his appeal Attorney Peard stated that no Department staff contacted him prior to denying access to determine whether one-time disclosure under Exemption (n) would be justified. I find the Department has failed to meet its burden of specificity in responding to this request for records. Accordingly, the Department is hereby ordered to respond to Attorney Peard's request in a manner consistent with this order, the Public Records Law and its Regulations. If the Department intends to withhold or redact any portion of the responsive records pursuant to a specifically stated exemption, Attorney Peard must be provided with a custodial index. See 950 C.M.R. 32.08(8). In preparing its response, the Department must directly engage Attorney Peard to determine whether he is eligibl t receive records under Exemption (n). This administrative appeal is closed. n Supervisor of Records cc: Mr. Billy Peard, Esq.