Chris Kenny v. Department of Agricultural Resources (SPR 20243143)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 5, 2024 SPR24/3143 Raquel Loayza Paralegal Department of Agricultural Resources 225 Turnpike Road, 3rd Floor Southborough, MA 01772 Dear Ms. Loayza: I have received the petition of Attorney Chris Kenny, of Clifford & Kenny, LLP, appealing the response of the Department of Agricultural Resources (Department/MDAR) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 10, 2024, Attorney Kenny requested “copies of the barn Inspection booklet and/or barn Inspections for the Town of East Bridgewater for the year 2023.” Previous Appeal This request was the subject of a previous appeal. See SPR24/2916 Determination of the Supervisor of Records (November 6, 2024). In my November 6th determination, I ordered of the Department to provide a supplemental response to Attorney Kenny. Subsequently, the Department responded on November 20, 2024. Unsatisfied with the Department’s response, Attorney Kenny petitioned this office, and this appeal, SPR24/3143, 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 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. 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 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 SPR24/3143 Page 2 December 5, 2024 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 November 20th Response In its November 20, 2024 response, the Department states that it “withheld responsive records, municipal barn inspection reports, pursuant to Exemption (n) of the Commonwealth’s Public Records Law.” See G. L. c. 4, § 7(26)(n). Exemption (n) Exemption (n) 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, cyber security 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 (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause 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.

Raquel Loayza SPR24/3143 Page 3 December 5, 2024 PETA also provides that “[t]hese two prongs of exemption (n) 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.” PETA, at 290. In its November 20th response, under Exemption (n), the Department argues the following: The barn inspection reports contain information including, but not limited to, the specific locations of animals housed in the Commonwealth for food purposes, the structural layout of animal enclosures, and the safety and security measures in place that protect both the animals and their human handlers. This information, if disclosed, could seriously compromise the security of these locations housing food producing animals, thus increasing the risk to public safety of the animals as well as the people and buildings involved with housing and transporting the animals. Federal and state authorities have recognized this risk for more than two decades and MDAR has consistently acted to shield this information from disclosure in accordance with federal guidance and state law. In response to the terrorist attacks of September 11, 2001, MDAR staff played an integral part in shaping the language used in Chapter 313 of the Acts of 2002, a law enacted to provide additional protections against terrorism and which, among other provisions, amended Chapter 4, section 7, paragraph 26, of the Massachusetts General Laws to include subsection (Exemption) (n) (quoted above). The exemption for records relating to emergency preparedness or records relating to infrastructure was specifically designed to protect the locations of agricultural endeavors producing food by crops or animals. In People for the Ethical Treatment of Animals v. Dept. of Agric. Res., 477 Mass. 280 (2017), the court addressed MDAR’s application of Exemption (n) in the context of animal health certificates and outlined the analysis to be applied when determining whether records properly fall within the scope of the exemption. ... Citing the intent of the legislation as providing protection against terrorist threat, the court noted the then-Governor’s concern about the state’s ability to protect its resources and other sensitive infrastructure as a motivating purpose behind the amendment. Id. at 289. . . . In this case, and in accordance with this analysis, MDAR reviewed all responsive records within its possession and determined that the records sought contain exactly the type of information enumerated in Exemption (n). The location of these sites and the animals and protocols maintained therein are part of the Commonwealth’s critical agricultural infrastructure. This information, if disclosed, creates a risk of direct targeting by individuals seeking to disrupt or destroy the Commonwealth’s food supply with respect to these animals, which is a recognized form of bioterrorism. Risks to public safety include adulteration or disruption of food products and their distribution on local and industrial scales.

Raquel Loayza SPR24/3143 Page 4 December 5, 2024 MDAR’s concern about security threats is shared and informed by federal counterparts and guidance. Both the United States Department of Agriculture (“USDA”) and the Department of Homeland Security (“DHS”) have directed states to maintain confidentiality when possible in regard to food producing animals. Barn owners agree to these annual inspections on a voluntary basis with assurance from MDAR that the inspection data is confidential and not shared. MDAR has maintained this policy for more than two decades to assist in the protection the public safety and food supply. After reviewing the nature of the records sought and the language of the exemption, MDAR’s record custodian then reasonably determined the records fell within the exemption and that the information contained therein was likely to jeopardize public safety if disclosed. This determination was reasonable and meets the burden for withholding that was articulated by the Commonwealth’s highest court for records of this nature. Based on the Department’s November 20th response, although portions of the records may fall under Exemption (n), it is unclear how the records can be withheld in their entirety. The Department must explain whether exempt information contained in the records can be redacted so that segregable portions can be provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Department is ordered to provide Attorney Kenny 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. Sincerely, Manza Arthur Supervisor of Records cc: Chris Kenny, Esq.