Nathaniel Edelheit-Rice v. Cambridge, City of - Law Department (SPR 20243460)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 13, 2025 SPR24/3460 Seah Levy Public Records Access Officer City of Cambridge Office of the City Solicitor 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Nathaniel Edelheit-Rice, of Animal Partisan, appealing the response of the City of Cambridge (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 11, 2024, Attorney Will Lowery, also of Animal Partisan, requested the following: [A]n electronic copy of the following records that were dated or transmitted between December 1, 2022 and the date of this request: [1.] Records related to any registration on file with the Commissioner of Laboratory Animals (“CLA”) on behalf of the Massachusetts Institute of Technology (“MIT”) pursuant to Municipal Code of the City of Cambridge § 6.12.030; [2.] MIT Animal Care and Use Committee records provided to the CLA pursuant to Municipal Code of the City of Cambridge § 6.12.060; [3.] Records reflecting any violations reported by CLA to MIT pursuant to Municipal Code of the City of Cambridge §6.12.070; [4.] Records of any inspections or investigations conducted by CLA at MIT collected or created pursuant to the Municipal Code of the City of Cambridge §§ 6.12.080. Previous Appeal This request was the subject of a previous appeal. See SPR24/2680 Determination of the Supervisor of Records (October 8, 2024). In my October 8th determination, I ordered the City to clarify its claims under Exemption (n) for redacting responsive records. Subsequently, the City responded on December 23, 2024. Unsatisfied with the City’s response, Mr. Edelheit-Rice 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

Seah Levy SPR24/3460 Page 2 January 13, 2025 petitioned this office, and this appeal, SPR24/3460, was opened as a result. Subsequent to the opening of this appeal, in a letter to this office and Mr. Edelheit-Rice on January 10, 2024, the City provided a further response. 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 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 City’s December 23rd and January 10th Responses In its December 23, 2024 response, the City cites Exemption (n) of the Public Records Law for redacting the responsive records. See G. L. c. 4, § 7(26)(n). In its January 10, 2025 response, the City further elaborates on its arguments for redacting the records pursuant to Exemption (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.

Seah Levy SPR24/3460 Page 3 January 13, 2025 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. 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 23rd response, under Exemption (n), the City argues the following: In applying the first prong of exemption (n), the city redacted certain information from the records as it related to the security operations, plans, policies, and procedures of the permit holding laboratories and facilities that, if released, terrorists “would find useful to maximize damage.” Id. For example, the City redactions included, but was not limited to, information related to the location and addresses of specific facilities, the names, addresses of facility personnel, the security policies and layouts of the facilities, the types of animals and experiments conducted, and emergency response protocols [r]elease of such information would enable persons to ascertain the location of specific areas and facilities associated with the institutions, as well as their security procedures. As such, the requested record resembles the records listed as examples in G. L. c. 4, § 7, 26 (n) and release of such records would jeopardize public safety. People for the Ethical Treatment of Animals v. Dep’t of Agric. Res., 477 Mass. at 290. With respect to the second prong of exemption (n), there have been a large number of targeted attacks against institutions which test laboratory animals over the years. For example, the Federation of American Societies for Experimental Biology estimates that approximately two hundred twenty (220) illegal incidents, including arson and bombings, were reported in the United States from 1990 to 2012. ... Where portions of the records sought by the requester could lead to the discovery of the institution’s locations, buildings, and employees, all of which

Seah Levy SPR24/3460 Page 4 January 13, 2025 have been the targets of previous attacks, the City exercised its “reasonable judgment” in accordance with People for the Ethical Treatment of Animals v. Dep’t of Agric. Res. to deny the request for institution blueprints, security schematics, and related policies and procedures. 477 Mass. at 290. In its January 10th response, the City further argues the following under Exemption (n): In the present case, the City produced three documents which were responsive to Requestor’s request. Each of these documents contained certain information that, after review and in the reasonable determination of the City, contained information that terrorists or bad actors would find useful in maximizing damage to facilities that conduct animal testing, the personnel involved in the animal testing, or their families. As such, the redactions conducted on all three documents meet the first prong of the PETA test. First, the City produced MIT’s Laboratory Animal Use Applications. The City’s redactions pertained to specific information concerning the identification and contact information for the officials and personnel involved in MIT’s animal testing research programs, the specific addresses and building locations where the animal testing facilities were located, and the number and species of the animals contained within these facilities. This information falls squarely within the threshold inquiry under the first prong of the PETA analysis, as terrorists would find this information useful to maximize damage. Knowing the specific identities of personnel working at these facilities would allow terrorists to subject them or their families to violence or harassment, or have them monitored to exploit potential security vulnerabilities. ... Likewise, providing the addresses and specific buildings where the testing is conducted provides exact locations to terrorists as to where to target MIT to disrupt animal testing facilities, enabling them to probe access points, target infrastructure that powers or operates those buildings, or obtain blueprints or other documentation to attack vulnerabilities. Knowing the number of animals and species involved in testing is also useful information for terrorists as it informs them of what equipment or tools that would allow them to maximize damage in a facility. Knowing whether the test animals are aquatic or mammalian would enable terrorists to bring the specific means to release or transport the animals if they gained access to a facility. ... As such, the information redacted from this record all pass the first prong of the PETA analysis, in that they are contain information related to security plans, policies, and structural documents related to facilities and their personnel. The second record the City produced was the Cambridge Commissioner Animal Facility Program Review and Inspection Report for MIT. The City’s production redacted two sections from the report related to considerations for improvement with the animal testing programs and references to said section. The redacted section of the report contained information relative to animal care, the species of animals being cared for and stored, and recommendations regarding care

Seah Levy SPR24/3460 Page 5 January 13, 2025 techniques. Knowing the number of animals and species involved in MIT’s programs would be information for terrorists in their planning and execution of attacks as it would allow them to know what specific equipment and materials they would need to bring to maximize damage. For instance, knowledge of caging and storage procedures for mammalian animals would allow terrorists to bring equipment to break into storage or allow animal release or transport, such as sheers, drills, or tanks. Therefore, the City’s redaction of these sections of the records also passes the first prong of the PETA analysis, as the sections contain information related to security plans and policies. Finally, the City produced its Semiannual Program Review and Facility Inspection Checklist for MIT. The inspection checklist is provided to assist institutions in City inspection requirements and tracking. Within this report, the City redacted two sections on pages seven and ten. These two sections contained detailed information regarding observations from the primary and satellite facilities’ inspection. This information included specific detail on MIT’s security policies, such as animal transfer, building and facility access, experiment safety signage, the specific equipment used, disaster planning, emergency medical and animal escape protocols, and surveillance policies. The sections also contain information about animal behavior programs for particular species identified in the sections. Disclosure of this information would enable terrorists to gain insight on facility location and how to undermine security policies in the areas. It would provide information on MIT’s disaster planning for animal testing facilities, which would allow them to either exploit or undermine their usage to disrupt or attack facilities. Similarly to the other redactions, knowledge of the nature of the experiments being conducted and the number of animals and species involved in MIT’s programs could likewise be used by terrorists in their planning any attack to maximize disruption of the facility during an attack. Therefore, the City’s redaction of these sections of the records also passes the first prong of the PETA analysis, as the sections contain information related to threat assessments, security plans, policies, and structural documents. As the information contained in the redacted sections of the documents meet the first prong of the PETA test, the question turns to whether disclosure of the record would “likely to jeopardize public safety.” As the City has detailed, the redacted sections contain specific information regarding the location, security procedures, and nature of MIT’s animal testing programs, which a terrorist could use to coordinate, target, and plan attacks on the facilities or their personnel. Knowledge or the specific locations where testing is being conducted in MIT buildings allows terrorist to focus their efforts in accessing the buildings where security systems could be probed and damaged maximized. Likewise, knowing the species of the animals stored in the facilities would allow terrorists to tailor their attacks to maximize their ability to free animals or damage containment. In light of these concerns, it was reasonable for the City to withhold this information.

Seah Levy SPR24/3460 Page 6 January 13, 2025 In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (n) claims made by the City to redact responsive records, the City 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 City’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 community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the City 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: Nathaniel Edelheit-Rice Elliott J. Veloso, Esq.