Chris Kenny v. Department of Agricultural Resources (SPR 20243408)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 7, 2025 SPR24/3408 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 Appeals This request was the subject of previous appeals. See SPR24/2916 Determination of the Supervisor of Records (November 6, 2024) and SPR24/3143 Determination of the Supervisor of Records (December 5, 2024). In my December 5th determination, I ordered the Department to clarify its claims for withholding the responsive records pursuant to Exemption (n) of the Public Records Law. Subsequently, the Department responded on December 19 and December 20, 2024. Unsatisfied with the Department’s responses, Attorney Kenny petitioned this office, and this appeal, SPR24/3408, 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 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 SPR24/3408 Page 2 January 7, 2025 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 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 December 19th and 20th Responses In its December 19, 2024 response, the Department provides a sample “blank barn book page,” and in its December 20, 2024 response, the Department refers back to its earlier November 20, 2024 response, and reiterates its claims under Exemption (n) for withholding responsive records. 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

Raquel Loayza SPR24/3408 Page 3 January 7, 2025 reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. 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 December 20th response, the Department explains that it “will not be producing an unredacted copy of the barn book. This decision is made pursuant to Exemption (n) and the reasons that have already been provided to [Attorney Kenny.]” The Department refers back to its earlier November 20th response, where the Department argued 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

Raquel Loayza SPR24/3408 Page 4 January 7, 2025 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. 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. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (n) claims made by the Department to withhold responsive records, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal

Raquel Loayza SPR24/3408 Page 5 January 7, 2025 community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Chris Kenny