Jacob Tinkhauser v. Department of Agricultural Resources (SPR 20241360)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 17, 2024 SPR24/1360 Raquel Loayza Paralegal Department of Agricultural Resources 251 Causeway Street, Suite 500 Boston, MA 02114 Dear Ms. Loayza: I have received the petition of Jacob Tinkhauser appealing the response of the Department of Agricultural Resources (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 15, 2024, Mr. Tinkhauser requested: …access to and copies of records specifically related to the detection of American foulbrood during apiary inspections on Nantucket in 2023. … Specifically seeking summaries of inspection results and any final enforcement actions taken….also request location details of the inspections, provided this does not include personally identifiable information or if such data can be redacted to prevent unwarranted invasions of privacy. Previous Appeal The request was the subject of a previous appeal. See SPR24/1331 Determination of the Supervisor of Records (May 3, 2024). In my May 3rd determination, I learned that the Department provided Mr. Tinkhauser with a further response dated May 2, 2024. Unsatisfied with the Department’s May 2nd response, Mr. Tinkhauser petitioned this office and this appeal, SPR24/1360, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(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 agency or One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Raquel Loayza SPR24/1360 Page 2 May 17, 2024 municipality 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. See G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s May 2nd response In its May 2, 2024 response, the Department stated that the records were withheld pursuant to Exemption (f) of the Public Records Law. Current Appeal In his appeal, Mr. Tinkhauser stated: While I understand and respect the importance of ensuring the integrity of ongoing investigations and protecting the interests of private individuals, I believe that the records can be disclosed in a redacted form that addresses these concerns while still upholding the principles of transparency and public access mandated by Massachusetts law. In their response, [the Department] cites ongoing investigations and the potential negative impacts on beekeepers and their business operations as primary reasons for denying access to the requested records. However, their justification lacks specificity on how the disclosure of redacted summaries and enforcement actions would jeopardize these investigations. General statements about potential impacts without detailed justification do not sufficiently support the broad application of Exemption (f), which requires a specific and narrow application. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such

Raquel Loayza SPR24/1360 Page 3 May 17, 2024 disclosure would not be in the public interest. G. L. c. 4, § 7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by case consideration” of whether disclosure ‘would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-290. In its May 2, 2024 response, the Department stated: The Department withheld records under Exemption (f) because these records contain information about an ongoing investigation, and the release of such information could interfere with the Department’s ability to carry out the investigation. Providing additional information about the specific location(s)/beekeeper(s) or related inspections at this stage in the inspection could create an incident where beekeepers may be targeted and subsequently have impacts on their business efforts given the stigma of this disease. Releasing information could also impact the Department’s ability to perform additional inspections due to the following: [1] Inability to perform full and complete investigations without possible undue influence or interference on process and protocols of Department investigations and affecting consistency in investigation protocols and procedures. [2] Create potential harmful situation for inspectors to visit to perform inspections given release of information prior to any final determination. [3] create potential for beekeepers to move infected material/further spread the infection prior to any final determination. [4] Limit beekeepers’ interest in requesting an inspection due to concern about sharing information if anything is found to be positive without the Department being able to conduct a full and thorough investigation before correct and complete information is released. [5]… releasing information at this point could also create a public concern and potential for misinformation as the matter is still ongoing and the Department has not made any final determination.

Raquel Loayza SPR24/1360 Page 4 May 17, 2024 Although the Department claims it has an open investigation regarding the requested record, it is unclear how the records are related to the ongoing investigation and how the records can be withheld, in their entirety, under Exemption (f). It is additionally uncertain from the Department’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must clarify these matters. Further, based on the Department’s response, it is unclear what types of records it possesses that it is withholding from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying each of the records. Therefore, the Department must identify the record(s) it has in its possession that the Department withheld under Exemption (f). Conclusion Accordingly, the Department is ordered to provide Mr. Tinkhauser with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Mr. Tinkhauser may appeal the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jacob Tinkhauser