Leiha Maldonado v. Department of Agricultural Resources (SPR 20251873)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 10, 2025 SPR25/1873 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 individuals] 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 SPR25/1873 Page 2 July 10, 2025 Holyoke, MA, 01040 or any combination thereof[.] Previous Appeals This request was the subject of previous appeals. See SPR25/1119 Determination of the Supervisor of Records (May 1, 2025) and SPR25/1315 Determination of the Supervisor of Records (May 23, 2025). In my May 23rd determination, I found it unclear how the records could be withheld in their entirety under exemption (f) and ordered the Department to identify the records in its possession that it intends to withhold from disclosure. The Department provided a response on June 18, 2025. Unsatisfied with the Department’s response, Ms. Maldonado petitioned this office and this appeal, SPR25/1873, 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 June 18th Response In its June 18, 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

Raquel Loayza SPR25/1873 Page 3 July 10, 2025 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 289-90. 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. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation.

Raquel Loayza SPR25/1873 Page 4 July 10, 2025 In its June 18th response, the Department states, “MDAR is withholding email correspondence records. The records should continue to be withheld because this correspondence includes details of the investigation which may lead to further action by MDAR, and releasing this information prior to the investigation closing could interfere with any actions MDAR may take in response to the investigation. MDAR anticipates that the investigation will be closed in the next few weeks, at which point Ms. Maldonado can submit another public records request and MDAR will provide any responsive records in its possession at that time.” Although the Department states that the records pertain to an active investigation, it remains 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). Further, the Department has provided no new arguments nor additional information that would affect the application of Exemption (f) to the responsive records. The Department must clarify this matter. In addition, the Department has not yet identified 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). 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