Leiha Maldonado v. Department of Agricultural Resources (SPR 20251315)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 23, 2025 SPR25/1315 Raquel Loayza Paralegal Massachusetts Department of Agricultural Resources 225 Turnpike Road, 3rd Floor Southborough, MA 01772 Dear Ms. Loayza: I have received the petition of Leiha Maldonado appealing the response of the Massachusetts 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 April 7, 2025, Ms. Maldonado requested the following: [1] Any emails, records, or written documents related to [three identified individuals] or … Wedgewood Terrace, Holyoke, MA 01040 or any combination thereof for the following people and organizations: [A list of nine identified individuals and organizations] [2] Any emails, records, or written documents for anyone not listed in [1] and related to [three identified individuals], or … Wedgewood Terrace, Holyoke MA 01040 or any combination thereof [3] Any emails, records, or written documents that mention or explain the following infections related to [three identified idividuals] or … Wedgewood Terrace, Holyoke, MA 01040 or any combination thereof (A) Campylobacter Jejuni C JEJUNI (B) Clostridium Perfringens or Clostridiales (C) Feline Coronavirus FCoV or FeCov (D) Feline Infections Peritonitis FIP (E) Tritrichomonas Foetus T FOETUS (F) Cryptosporidium [4] Any emails, records, or written documents about the status of the investigation of my cat, Poppy, and [three identified individuals], or … Wedgewood Terrace, 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 SPR25/1315 Page 2 May 23, 2025 Holyoke, MA, 01040 or any combination thereof[.] Previous Appeal This request was the subject of a previous appeal. See SPR25/1119 Determination of the Supervisor of Records (May 1, 2025). In my May 1st determination, I learned that the Department intended on providing a supplemental response. The Department provided a response on May 1, 2025. Unsatisfied with the Department’s response, Ms. Maldonado petitioned this office and this appeal, SPR25/1315, 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. Att’y 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 1st Response In its May 1, 2025 response, the Department states it is withholding responsive records under Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). 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 disclosure would not be in the public interest G. L. c. 4, § 7(26)(f).

Raquel Loayza SPR25/1315 Page 3 May 23, 2025 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 289-90. The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62. In its May 1st response, the Department states, “MDAR has reviewed its records and because the investigation related to this matter is still ongoing, we are withholding responsive documents pursuant to Exemption (f), the investigatory exemption… While we are unable to provide an estimate as to the date of completion at this time, please note that once this investigation is complete, if you would like to make another request MDAR can provide responsive records at that point in time.” Although the Department states that the records pertain to an active investigation, it is unclear how the records can be withheld in their entirety. Specifically, the Department did not provide any supporting information to demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must clarify this matter. In addition, the Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold 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). Therefore, the Department must identify the record(s) it has in its possession that the Department withheld under Exemption (f).

Raquel Loayza SPR25/1315 Page 4 May 23, 2025 Conclusion Accordingly, the Department is ordered to provide Ms. Maldonado with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: Leiha Maldonado