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SJC-12207
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. vs.
DEPARTMENT OF AGRICULTURAL RESOURCES & another.1
Suffolk. February 6, 2017. - June 14, 2017.
Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.
Public Records. Agriculture. Animal. Statute, Construction.
Privacy.
Civil action commenced in the Superior Court Department on
October 14, 2014.
The case was heard by Christopher J. Muse, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
David Milton for the plaintiff.
Amy Spector, Assistant Attorney General, for the
defendants.
Laura Rótolo & Jessie Rossman, for American Civil Liberties
Union of Massachusetts, amicus curiae, submitted a brief.
Jessica White, for Prisoners' Legal Services of
Massachusetts, amicus curiae, submitted a brief.
1
Commissioner of the Department of Agricultural Resources.
2
LENK, J. This case concerns the scope of two exemptions
from the statutory definition of "public records."
Specifically, it probes whether information, such as names,
addresses, telephone numbers, and other information, contained
on animal health certificates in the custody of the Department
of Agricultural Resources, is subject to disclosure in response
to a public records request. A Superior Court judge determined
that such information is protected from disclosure under
statutory exemptions G. L. c. 4, § 7, Twenty-sixth (n) and (c),
implicating, respectively, public safety and privacy. For the
reasons that follow, we vacate that order and remand for further
proceedings consistent with this opinion.2
Background. 1. Public records framework. At all times
relevant to this case, two statutes governed access to public
records: G. L. c. 66, § 10, and G. L. c. 4, § 7, Twenty-sixth.3
2
We acknowledge the amicus briefs of the American Civil
Liberties Union of Massachusetts and Prisoners' Legal Services
of Massachusetts.
3
Since the entry of judgment in this case, G. L. c. 66,
§ 10, has been substantially revised, with the changes taking
effect on January 1, 2017. Compare G. L. c. 66, § 10, as
amended by St. 2010, c. 256, §§ 58-59, with G. L. c. 66,
§§ 10, 10A, as amended by St. 2016, c. 121. General Laws c. 4,
§ 7, Twenty-sixth (n) (exemption [n]), also has been revised,
albeit in a less substantial way. See St. 2016, c. 121, §§ 1-3
(inserting phrase "cyber security" into exemption [n]). This
opinion refers to the versions of G. L. c. 66, § 10, and G. L.
c. 4, § 7, that existed through 2015, the time period relevant
to the adjudication of the plaintiff's public records request.
3
General Laws c. 66, § 10, sets forth the conditions under which
government entities, through their records custodians, must
provide access to public records. "The primary purpose of G. L.
c. 66, § 10, is to give the public broad access to governmental
records." Worcester Tel. & Gazette Corp. v. Chief of Police of
Worcester, 436 Mass. 378, 382-383 (2002).
The term "public records," in turn, is defined by G. L.
c. 4, § 7, Twenty-sixth. The definition sweeps in a wide array
of documents and data made or received by employees, agencies,
or other instrumentalities of the Commonwealth. See Hull Mun.
Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414
Mass. 609, 614 (1993), citing G. L. c. 4, § 7, Twenty-sixth
(1990 ed.). This expansive definition of "public records" is
statutorily limited by twenty enumerated exemptions in G. L.
c. 4, § 7, Twenty-sixth (a)-(u).
Together, these statutes, and our cases interpreting them,
favor disclosure of public records in two primary ways. First,
G. L. c. 66, § 10, imposes a presumption that the record sought
is public and places the burden on the records custodian to
"prove with specificity" that an exemption applies. G. L.
c. 66, § 10 (c). To that end, "a case-by-case review is
Although not raised by the parties and while the point need not
be settled today, it appears that, going forward, such revisions
would not significantly alter our analysis as to the exemptions
and their application.
4
required to determine whether an exemption applies." Matter of
a Subpoena Duces Tecum, 445 Mass. 685, 688 (2006). Second, the
statutory exemptions in G. L. c. 4, § 7, Twenty-sixth, are to be
"strictly construed." Hull Mun. Lighting Plant, 414 Mass. at
614.
The two statutory exemptions at issue in this case are
found in subsections (n) (exemption [n]) and (c) (exemption [c])
of G. L. c. 4, § 7, Twenty-sixth. Exemption (n) concerns
records related to public safety. Specifically, it allows a
records custodian to withhold an otherwise public record if the
record is sufficiently related to the safety or security of
persons or infrastructure, and if disclosure of the record, in
the "reasonable judgment of the record custodian," is "likely to
jeopardize public safety." G. L. c. 4, § 7, Twenty-sixth (n).
Exemption (c) concerns records related to privacy. It
permits a records custodian to withhold an otherwise public
record if it is a personnel or medical file, or if it relates to
a specifically named individual and its disclosure may
constitute an unwarranted invasion of personal privacy. G. L.
c. 4, § 7, Twenty-sixth (c).
These two exemptions share a common characteristic in that
they both require consideration of the likely consequences of
releasing the record sought. Exemption (n), however, is unique
among the statutory public records exemptions in including the
5
"reasonable judgment of the record custodian" as part of the
calculation. See generally G. L. c. 4, § 7, Twenty-sixth.
2. Facts. In February, 2014, People for the Ethical
Treatment of Animals, Inc. (PETA), submitted two requests under
G. L. c. 66, § 10, to the Department of Agricultural Resources
(department). The first sought access to "any and all permits,
licenses, health certificates, and other documentation related
to the export and/or import of nonhuman primates in
Massachusetts during 2013." The second sought access to "all
records referencing, reflecting, or relating to alleged or
claimed safety risks posed to animals (including but not limited
to nonhuman primates), people and buildings involved with
housing and transporting non-human primates."
The department responded in April, 2014. With respect to
the first request, the department provided copies of eleven
pages of interstate health certificates for nonhuman primates.
The department redacted from the certificates three categories
of information: (1) the names and addresses of consignors and
consignees, (2) United States Department of Agriculture license
or registration numbers, and (3) the names, addresses, telephone
numbers, and license numbers of all veterinarians whose
6
information appeared on the health certificates.4 The department
expressed its view that disclosing such information "could
compromise the security of locations housing non-human primates,
thus increasing the risk to public safety of the animals as well
as the people and buildings involved with housing and
transporting the animals." As a result, the department believed
the information was exempt from the definition of "public
records" pursuant to exemption (n).
The department's response also referenced, and provided a
copy of, a 2013 memorandum from the United States Department of
Veterans Affairs (VA memorandum). In the VA memorandum, the
Freedom of Information Act (FOIA) Office of the Veterans Health
Administration advised its FOIA field officers "not to release
any personal information" about "personnel engaged in any way in
animal research in response to requests for that information."
With respect to PETA's second request, the department
stated that it did not have any records regarding alleged or
claimed safety risks posed to animals, people, or buildings
involved with the housing and transport of nonhuman primates.
PETA appealed from the department's response to the
supervisor of public records, pursuant to G. L. c. 66, § 10 (b).
4
Although not specified in this initial response, the
Department of Agricultural Resources (department) later asserted
that the redacted information encompassed information pertaining
to both facilities and specifically named individuals.
7
In June, 2014, the supervisor of public records resolved the
appeal in the department's favor, noting its reliance on the VA
memorandum and upholding its redactions. The supervisor of
public records stated that "[a]lthough the FOIA exemptions cited
in the [VA] memorandum are not available to the [d]epartment as
a means of responding to [PETA's] request, the manner in which
this information is treated by the [F]ederal government is
persuasive when examining the [d]epartment's [e]xemption (n)
claim."
3. Procedural history. In October, 2014, PETA filed a
complaint in the Superior Court challenging the department's
redactions and seeking injunctive and declaratory relief, per
G. L. c. 66, § 10 (b). In essence, the complaint alleged that
the department had failed to meet its burden of showing that the
sole exemption it relied on in making the redactions --
exemption (n) -- applied to the redacted information, and
therefore that the department's refusal to provide unredacted
copies of the health certificates violated G. L. c. 66, § 10.
After answering the complaint, the department filed an
emergency motion for a protective order to stay discovery. The
department argued that discovery was unnecessary because it had
relied on only three documents in determining that exemption (n)
applied: (1) the VA memorandum, discussed supra; (2) a 2013
decision of the supervisor of public records applying exemption
8
(n) to an earlier, similar public records request from PETA; and
(3) a 2013 memorandum from the department's legal division
explaining its view that exemption (n), as well as the privacy
exemption under FOIA, 5 U.S.C. § 552(b)(6) (2012), authorized
the withholding of much, but not all, of the information
redacted from PETA's 2014 request.5 PETA opposed the motion,
arguing primarily that exemption (n) requires a fact-intensive
inquiry that justified its discovery requests. After a hearing,
the Superior Court judge deferred ruling on the motion in order
to allow the department to file a "comprehensive statement in
support of its reasons" for claiming that exemption (n) applied,
as well as an anticipated dispositive motion.
The department then filed a memorandum in support of its
motion. In it, the department argued that it properly relied on
exemption (n) in redacting the information described above. It
also argued, for the first time, that exemption (c) authorized
the redaction of names, addresses, and telephone numbers
pertaining to individuals (as opposed to facilities), which also
appeared on the health certificates. PETA argued in opposition
that neither exemption applied. Both sides attached numerous
exhibits to their memoranda.
5
Specifically, this memorandum expressed the view that the
name, address, and telephone number of the consignor "can be
disclosed" under State and Federal law. With respect to PETA's
2014 request, however, such information was redacted.
9
After another hearing, the judge ruled largely in the
department's favor. He determined that because exemption (n)
includes such "deferential language" as "reasonable judgment"
and "likely to jeopardize public safety," it required the court
to give "a heightened level of deference to the keeper and
supervisor of public records." Thus, based on the VA memorandum
and other documents submitted by the department, the judge
concluded that the department had demonstrated with sufficient
specificity that, in the department's reasonable judgment,
release of information on the health certificates pertaining to
"persons and facilities located in the Commonwealth" was likely
to jeopardize public safety, and therefore was protected under
exemption (n).6 Further, the judge concluded that the names,
addresses, and telephone numbers identifying individual persons
as consignees, consignors, or veterinarians are protected from
disclosure under exemption (c).7
6
The judge also concluded that similar information related
to persons and facilities located outside of Massachusetts was
not protected by exemption (n). Neither party appeals from this
component of the judgment. Therefore, we do not review it.
7
The decision below does not discuss whether other
information redacted from the certificates, such as license
numbers, accreditation numbers, permit numbers, and premises
identification numbers, fall within the scope of the claimed
exemptions. Nor do the parties discuss those pieces of
information in their briefs. Accordingly, we do not address
them here.
10
PETA appealed, and we transferred the case to this court on
our own motion.
Discussion. It is uncontested that the animal health
certificates that PETA requested fall within the general
definition of "public records." Thus, despite its unusual
procedural background,8 this appeal turns on two questions of
statutory construction: the scope of exemptions (n) and (c).9
We exercise de novo review of such questions. See Monell v.
Boston Pads, LLC, 471 Mass. 566, 569–570 (2015).
1. Exemption (n). Exemption (n) contemplates the
withholding of:
"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
8
Primarily, this appeal requires us to review the grant of
judgment to the department. It is unclear on the record before
us precisely which rule of the Massachusetts Rules of Civil
Procedure the judge relied upon in granting judgment to the
department. Even assuming, as the parties urge, that the judge
effectively granted summary judgment to the department, our
approach would be the same because, given our interpretation
today of the scope of exemptions (n) and (c), it cannot be said
that "the moving party is entitled to judgment as a matter of
law" (citation omitted). Massachusetts Insurers Insolvency Fund
v. Smith, 458 Mass. 561, 564 (2010).
9
PETA also argues that the judge abused his discretion by
entering judgment in the department's favor without permitting
PETA further development of the factual record through
discovery. On remand, the judge should consider whether
additional discovery may be necessary or appropriate in light of
the scope of the relevant exemptions discussed in this opinion.
11
or safety of persons or buildings, structures, facilities,
utilities, transportation 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 [G. L.
c. 66, § 10 (b)], is likely to jeopardize public safety."
G. L. c. 4, § 7, Twenty-sixth (n).
The parties essentially agree that applying this exemption
requires a two-part analysis. First, it requires a threshold
determination concerning the nature of the requested record.
Id. Second, it requires the records custodian to exercise
"reasonable judgment" in determining that disclosure of the
requested record is "likely to jeopardize public safety." Id.
That being said, however, the parties disagree as to
precisely what these two components mean, the relationship
between them, and whether they were satisfied in this case. In
particular, they disagree about whether the animal health
certificates that PETA requested are swept within the scope of
the exemption by the "any other records" clause. Further, they
disagree about what constitutes "reasonable judgment" in
predicting "jeopard[y] [to] public safety," terms that are not
defined in the statute.
Construing the scope of exemption (n) appears to be a
question of first impression for this court. "Our primary duty
is to interpret a statute in accordance with the intent of the
Legislature." Pyle v. School Comm. of S. Hadley, 423 Mass. 283,
12
285 (1996). Discerning the intent of the Legislature with
respect to exemption (n) requires us to examine the plain
meaning of the statutory language, and to draw upon the canons
of construction known as noscitur a sociis ("it is known by its
associates") and ejusdem generis ("of the same kind or class"),
as well as the legislative history of the enactment. See
Black's Law Dictionary 631, 1224 (10th ed. 2014).
We begin by examining the plain meaning of the statutory
language, for if that language is "clear and unambiguous, it is
conclusive as to the intent of the Legislature." Deutsche Bank
Nat'l Trust Co. v. Fitchburg Capital, LLC, 471 Mass. 248, 253
(2015). Upon examining the language of exemption (n), however,
it is immediately apparent that the language is neither clear
nor unambiguous as to the scope of the exemption.
With respect to the first part of exemption (n), we
confront a general term ("records"), followed by a nonexhaustive
list of specific examples, followed by the general phrase "or
any other records relating to the security or safety of persons
or buildings." G. L. c. 4, § 7, Twenty-sixth (n). As the
department points out, if we focus too closely on the listed
examples, we risk giving too little weight to the Legislature's
decision to include the "any other records" clause, thereby
improperly narrowing the scope of exemption (n). On the other
hand, as PETA points out, if we focus too closely on the breadth
13
suggested by the "any other records" clause, we risk giving too
little weight to the list of examples that the Legislature saw
fit to include, thereby improperly expanding exemption (n)
beyond what the Legislature intended. The latter approach also
would contravene our usual practice of interpreting exemptions
to the public records laws narrowly. See Hull Mun. Lighting
Plant, 414 Mass. at 614. With respect to the second part of
exemption (n), the language of the statute offers no specific
guidance as to what the Legislature intended by the phrases
"reasonable judgment" and "likely to jeopardize public safety."
G. L. c. 4, § 7, Twenty-sixth (n).
When faced with a similar interpretive issue in the past,
we have, on occasion, applied the canon of noscitur a sociis,
which counsels that "ordinarily the coupling of words denotes an
intention that they should be understood in the same general
sense." Commonwealth v. Hamilton, 459 Mass. 422, 432 (2011),
quoting 2A N.J. Singer, Sutherland Statutory Construction
§ 47:16, at 352–353 (7th ed. 2007). In other words,
"[a] general term in a statute or ordinance takes meaning
from the setting in which it is employed. The literal
meaning of a general term in an enactment must be limited
so as not to include matters that, although within the
letter of the enactment, do not fairly come within its
spirit and intent."
Kenney v. Building Comm'r of Melrose, 315 Mass. 291, 295 (1943).
We also have applied a close relative of this doctrine known as
14
ejusdem generis. See Banushi v. Dorfman, 438 Mass. 242, 244
(2002). This canon counsels that "[w]here general words follow
specific words in a statutory enumeration, the general words are
construed to embrace only objects similar in nature to those
objects enumerated by the preceding specific words." Id.,
quoting 2A N.J. Singer, Sutherland Statutory Construction
§ 47:17, at 273–274 (6th ed. 2000).
Applying those canons here suggests a narrow interpretation
of exemption (n). In particular, they caution against
interpreting the general language regarding "any other records
relating to the security or safety of persons or buildings" as
enlarging the scope of the statute beyond the legislative raison
d'etre evinced by the enumerated list of examples. In other
words, while the class of records that may qualify for
exemption (n) is open, and not closed, we must interpret the
"any other records" clause as embracing only those records that,
when released, are "likely to jeopardize public safety" in a
similar way to one of the examples listed in exemption (n).
Where, as here, the language of a statute itself is not
conclusive as to the Legislature's intent, we also may seek
guidance from the legislative history. ENGIE Gas & LNG LLC v.
Department of Pub. Utils., 475 Mass. 191, 199–200 (2016). Much
of that history further supports a narrow interpretation of
exemption (n).
15
Exemption (n) was enacted as one of twelve sections in "An
Act providing protections against terrorism" (act). See
St. 2002, c. 313. That title speaks for itself in terms of the
Legislature's thinking at the time it adopted exemption (n).
Its thrust is reinforced by other contextual clues, including
the timing of the enactment and contemporaneous media coverage.
Specifically, the act was passed by the Legislature and signed
into law in September, 2002 -- the one-year anniversary of the
September 11, 2001, attacks on the World Trade Center and the
Pentagon. See Anti-Terror Bill Sent to [then Acting Governor
Jane M.] Swift's Desk, State House News Service, Sept. 3, 2002;
Swift Signs Anti-Terrorism Legislation, Executive Department
Press Release, Sept. 10, 2002.
The preenactment history behind exemption (n) corroborates
the notion that protecting the public from terrorist attacks in
a post-September 11, 2001, world was the animating principle
underlying its adoption. Exemption (n) was proposed by Acting
Governor Swift. See Letter from Acting Governor Swift to Senate
and House of Representatives, June 26, 2002. The letter makes
clear that the acting Governor believed that such an exemption
was necessary following the events of September 11, 2001. Id.
She described the legislation as "carv[ing] out a very narrow
exemption to the definition of public records for those
materials pertaining to public safety including threat
16
assessments, security plans and certain records depicting
critical infrastructure." Id. The letter indicates that the
acting Governor had in mind "certain records pertaining to state
and local government's ability to protect its resources as well
as other sensitive infrastructure" and hoped to "encourage
private industries to share sensitive information regarding
their respective security plans with law enforcement without the
risk of automatic public disclosure." Id. Similarly, the
Executive Office of Public Safety described exemption (n) as
encompassing records of "the type that terrorists would find
useful to maximize damage, such as threat assessments, security
plans and structural documents depicting critical
infrastructure."10 Memorandum, Executive Office of Public
Safety, September 5, 2002 (EOPS Memorandum).
Given this legislative history and the canons of statutory
construction operative here, we conclude that the following
construction of exemption (n) strikes the appropriate balance.
10
The Legislature's only substantive change to the language
that Acting Governor Swift proposed for exemption (n) was to
modify the "reasonable judgment of the record custodian" by
adding the phrase "subject to review by the supervisor of public
records [G. L. c. 66, § 10 (b)]." See Amendment to House Doc.
No. 5272 dated July 24, 2002. While any decision by a records
custodian to withhold records already was subject to review by
the supervisor of public records, see G. L. c. 66, § 10 (b), the
Legislature's emphasis on the availability of such review
indicates its understanding that exemption (n) was not an
unbounded, unreviewable expansion of the discretion of records
custodians.
17
The first prong of exemption (n) probes whether, and to
what degree, the record sought resembles the records listed as
examples in the statute. The touchstone of this inquiry is
whether, and to what degree, the record is one a terrorist
"would find useful to maximize damage," EOPS Memorandum, and in
that sense jeopardize public safety.11
The second prong of exemption (n) probes the factual and
contextual support for the proposition that disclosure of the
record is "likely to jeopardize public safety." G. L. c. 4,
§ 7, Twenty-sixth (n). Because 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.12
11
The statutory language makes clear that this jeopardy to
public safety contemplates damage to "persons or buildings . . .
or other infrastructure." G. L. c. 4, § 7, Twenty-sixth (n).
12
On this point, we observe that the Secretary of the
Commonwealth, through regulations and a guide, appears to view
exemption (n) as uniquely permitting a records custodian to
inquire into the requestor's purpose for seeking a particular
record before determining whether to release it. See 950 Code
Mass. Regs. § 32.06(2)(h)(1) (2017); Secretary of the
Commonwealth, Division of Public Records, A Guide to the
Massachusetts Public Records Law 27 (updated Jan. 2017). We do
not decide whether this inquiry is appropriate, as that issue is
18
These 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.
In some cases, the first prong of exemption (n) will yield
a strong resemblance between the record sought and the types of
records listed in the statute -- for instance, when a requestor
seeks access to exactly one of the types of records listed in
exemption (n), such as a blueprint or emergency preparedness
plan. In those cases, with respect to the second prong of
exemption (n), the custodian still bears the burden of
demonstrating that it exercised "reasonable judgment" in
determining that disclosure of the record is "likely to
jeopardize public safety," G. L. c. 4, § 7, Twenty-sixth (n).
But this burden will be at its lowest.
Conversely, as the resemblance between the record sought
and the listed examples in exemption (n) decreases, the
custodian's burden for demonstrating "reasonable judgment"
increases. Thus, when the requested record bears little or no
not directly before us. We note, however, that nothing we
discovered in our review of the legislative history indicated an
intent to depart radically from the typical public records
procedure, which would not permit such an inquiry. See 950 Code
Mass. Regs. § 32.06(2)(h). See also note 10, supra.
19
resemblance to the listed examples, the custodian's burden for
demonstrating that it exercised "reasonable judgment" in
determining that disclosure of the record is "likely to
jeopardize public safety" will be at its highest.
We recognize that the Superior Court judge did not have the
benefit of our construction of exemption (n) when he granted
judgment to the department. Therefore, we vacate the decision
and remand the matter for consideration of PETA's request in
light of this opinion. See Blixt v. Blixt, 437 Mass. 649, 660,
666 (2002), cert. denied, 537 U.S. 1189 (2003) (reversing and
remanding for further consideration in light of court's
interpretation of governing statute).
In this regard, it is well to note that exemption (n) is
unique among the public records exemptions in its inclusion of
the phrase "reasonable judgment of the record custodian." See
generally G. L. c 4, § 7, Twenty-sixth. Such language neither
requires or even invites any heightened level of deference to
the records custodian's initial determination whether to
disclose or withhold a record. Rather, we agree with the
department's concession at oral argument: that a court should
review the custodian's determination de novo. Cf. Wakefield
Teachers Ass'n v. School Comm. of Wakefield, 431 Mass. 792, 796
(2000) (application of statutory exemption from definition of
"public records" is question of statutory interpretation);
20
Champa v. Weston Pub. Sch., 473 Mass. 86, 89-90, 96 (2015)
(following supervisor of public records' decision, court
reviewed de novo order allowing judgment on pleadings).
2. Exemption (c). The judge also approved the
department's redaction of the names, addresses, and telephone
numbers identifying individual persons as consignees,
consignors, or veterinarians. The judge concluded that
exemption (c) protects such information from disclosure because
the identified individuals "have a considerable privacy interest
in their identities, addresses, and telephone numbers" that is
not substantially outweighed by the public interest in releasing
that information.
Unlike exemption (n), exemption (c) previously has been the
subject of our consideration in a number of different contexts.
Exemption (c) permits the withholding of "personnel and medical
files or information," as well as "any other materials or data
relating to a specifically named individual, the disclosure of
which may constitute an unwarranted invasion of personal
privacy." G. L. c. 4, § 7, Twenty-sixth (c).
Exemption (c) requires a balancing test: where the public
interest in obtaining the requested information substantially
outweighs the seriousness of any invasion of privacy, the
private interest in preventing disclosure must yield. See
Champa, 473 Mass. at 96. On one side of the scale, we have
21
looked to three factors to assess the weight of the privacy
interest at stake: (1) whether disclosure would result in
personal embarrassment to an individual of normal sensibilities;
(2) whether the materials sought contain intimate details of a
highly personal nature;13 and (3) whether the same information is
available from other sources. Globe Newspaper Co. v. Police
Comm'r of Boston, 419 Mass. 852, 858 (1995). We have also said
that "other case-specific relevant factors" may influence the
calculus. Id. On the other side of the scale, we have said
that the public has a recognized interest in knowing whether
public servants are carrying out their duties in a law-abiding
and efficient manner.14 Id.
13
Looking to the Federal counterpart to exemption (c) as a
guide, we have said that such "intimate details" may include
"marital status, legitimacy of children, identity of fathers of
children, medical condition, welfare payments, alcohol
consumption, family fights, [and] reputation" (citations
omitted). Attorney Gen. v. Assistant Comm'r of the Real Prop.
Dep't of Boston, 380 Mass. 623, 626 n.2 (1980), and cases cited.
We also have said that the "[n]ames and addresses of adults are
not 'intimate details' of a 'highly personal nature'" (citation
omitted). Cape Cod Times v. Sheriff of Barnstable County, 443
Mass. 587, 595 (2005).
14
PETA has not attempted to articulate a public interest in
obtaining the information sought. Instead, it has argued that
because there is no privacy interest whatsoever in business
contact information, the burden has not yet shifted to PETA to
articulate a public interest that might overcome the privacy
interest. Accordingly, if the judge on remand finds some
privacy interest does exist in the redacted information, PETA
must be afforded an opportunity to articulate a public interest
on the other side of the balancing test.
22
PETA argues that the judge erred by presuming that publicly
available business contact information implicated a privacy
interest, and thereby inappropriately shifted the burden to PETA
to show that the public interest in disclosure substantially
outweighed a nonexistent privacy interest. The department did
not advance a privacy rationale until well after it made the
redactions in question. Nevertheless, it now urges us to adopt
the judge's reasoning that the information in question does
implicate a measurable privacy interest (stemming from the
purported safety risks associated with releasing such
information), and that this privacy interest is not
substantially outweighed by any public interest in the release
of the information.
Exemption (c) requires a nuanced analysis. At the outset,
the application of exemption (c) in this case must account for
the difference between the privacy interest in one's home
address and the privacy interest in one's business address.15
15
PETA appears to assume that the redacted information
related to individuals (as opposed to facilities) pertains only
to their place of business; the department does not directly
refute this point. Because of the department's redactions, the
record itself sheds no light on the subject. On remand, in
order to allow the judge to calibrate the privacy balancing test
properly, the parties may stipulate as to the precise nature of
this information, or the judge may employ some other mechanism,
such as in camera review, for discerning the nature of the
information sought. See Worcester Tel. & Gazette Corp. v. Chief
23
Compare Federal Labor Relations Auth. v. United States Dep't of
Navy, Naval Communications Unit Cutler, E. Machias, Me., 941
F.2d 49, 55–56 (1st Cir. 1991) (privacy interest in one's name
and home address is "discernible" and "real enough to be worthy
of recognition and protection in appropriate circumstances"),
with Cape Cod Times v. Sheriff of Barnstable County, 443 Mass.
587, 595 (2005) ("Names and addresses of adults are not
'intimate details' of a 'highly personal nature,'" therefore
exemption [c] "does not bar inspection of records containing the
names and addresses of individuals who serve as reserve deputy
sheriffs" [citation omitted]); Pottle v. School Comm. of
Braintree, 395 Mass. 861, 864 (1985) (public school employees'
names and home addresses do not fall within exemption [c]); and
Hastings & Sons Publ. Co. v. City Treasurer of Lynn, 374 Mass.
812, 818 (1978) (municipal payroll records, which included names
and addresses of employees, "not the kind of private facts that
the Legislature intended to exempt from mandatory disclosure"
with exemption [c]).
We acknowledge that cases like Cape Cod Times and Pottle
dealt with the home addresses of public employees, whereas this
case appears to implicate the business addresses of nonpublic
employees. See Georgiou v. Commissioner of the Dep't of Indus.
of Police of Worcester, 436 Mass. 378, 384-385 (2002)
(discussing various mechanisms for judicial inspection).
24
Accs., 67 Mass. App. Ct. 428, 435–436 (2006) (recognizing public
employees' diminished expectation of privacy in certain
information). But exemptions to the public records laws must be
applied on a case-by-case basis, Worcester Tel. & Gazette Corp.,
436 Mass. at 383–384, and "the same information about a person,
such as his name and address, might be protected from disclosure
as an unwarranted invasion of privacy in one context and not in
another." Torres v. Attorney Gen., 391 Mass. 1, 9 (1984).
Accordingly, the exemption (c) balancing test in this case
should account for the different privacy interests in a home
address versus a business address, and held by a public employee
versus a private one.
Relatedly, the exemption (c) balancing test must account
for the fact that the gravity of any putative invasion of
privacy resulting from disclosure of the records sought may be
reduced if "substantially the same information is available from
other sources." Attorney Gen. v. Collector of Lynn, 377 Mass.
151, 157 (1979). Indeed, one reason that a person's business
address normally will give rise to a lower privacy interest than
her home address is that business addresses typically are widely
shared with others and, in this case at least, may well be
exposed to scrutiny by researchers, government agencies,
25
shippers, and possibly others.16 See Brown v. Perez, 835 F.3d
1223, 1235 (10th Cir. 2016) ("It is not intuitive to us that the
referee physicians possess a cognizable privacy interest in
their business addresses -- after all, it is in their economic
interests to make their office locations generally available to
the public, so that patients can visit for evaluation and
treatment").
Finally, the department raises the suggestion that risks to
the personal safety of individuals from the release of certain
requested information should be factored into the exemption (c)
balancing calculus. Given the record and the briefs before us,
it is a suggestion to be approached quite gingerly.
On the one hand, we have not located any cases of this
court interpreting or applying exemption (c) in the way the
department proposes. Indeed, our cases have cabined the scope
of exemption (c) in a way that would seem to minimize the
relevance of potential security concerns to the privacy
16
The department's observation that "PETA does not suggest
that the identities of the same persons identified in the
certificates at issue here have already been disclosed" rings
somewhat hollow; PETA could not know the identities on the
certificates because the department redacted them. If the
department decides to pursue that point on remand, it carries
the burden of showing that the exemption applies. See G. L.
c. 66, § 10 (c). Consequently, as mentioned in note 15, supra,
some type of stipulation or in camera inspection might be
necessary to determine whether some or all of the information is
already available in the public domain before a ruling on the
privacy exemption is possible.
26
calculus.17 See, e.g., Hastings & Sons Publ. Co., 374 Mass. at
817-818 (municipal police officers' names and addresses not
protected by exemption [c]); Cape Cod Times, 443 Mass. at 594
(same regarding names and addresses of reserve deputy sheriffs).
On the other hand, we have said that "the same information about
a person, such as his name and address, might be protected from
disclosure as an unwarranted invasion of privacy in one context
and not in another." Torres, 391 Mass. at 9. Accordingly, we
are unwilling to eliminate wholly the possibility that, in very
limited circumstances where the department can identify specific
information demonstrating that a significant risk to an
individual's personal safety is posed by the disclosure of a
home address or telephone number, that non-dispositive factor
can add weight to whatever privacy interest exists on that side
of the balancing test.
In sum, the exemption (c) analysis should be tailored to
the several "case-specific relevant factors," Globe Newspaper
17
It appears that precisely such concerns motivated the
adoption, in 1996, of G. L. c. 66, § 10 (d), third par., as
amended through St. 2010, c. 256, §§ 58-59, which, at the time
relevant to this case, exempted from the definition of "public
records" the "home address and home telephone number of law
enforcement, judicial, prosecutorial, . . . and any other public
safety and criminal justice system personnel." See, e.g.,
Memorandum, Office of the Governor's Legal Counsel, Mar. 12,
1996 (subsection (d), third par., aimed "to protect persons
whose employment might subject them or their family members to
harassment or retaliation").
27
Co., 419 Mass. at 858, that PETA's request presents. Among them
are (1) whether the redacted information pertains to home or
business addresses of public or private entities; (2) whether,
and to what extent, that information is available from other
sources; and (3) whether, and to what extent, the department can
identify specific information demonstrating that a significant
risk to an individual's personal safety is posed by the
disclosure of a home address or telephone number that may be
among the redacted information.
Conclusion. The entry of judgment for the defendant is
vacated and set aside. The matter is remanded to the Superior
Court for further proceedings consistent with this opinion.
So ordered.