Victory for Public Records Advocates: Mass. High Court Limits Anti-Terrorism Exemption

By Robert A. Bertsche, Jeffery Pyle and Robert Tran

All who deal with records held by government entities and employees know the basic rule: In Massachusetts, the public records law states that all records are presumed public unless a specific legal exemption applies. The problem is, the list of exemptions has grown steadily over time, often making it seem as though the exceptions have swallowed the rule.

Not so last week.

In a victory for public records advocates, the Supreme Judicial Court issued an important ruling limiting the scope of one of the more troubling exemptions. This ruling should invigorate those who are working to take advantage of recent changes to the public records law that make it easier to fight for the public’s right to know.

Exemption “n,” enacted in the wake of the 9/11 terrorist attacks, permits withholding of any record “the disclosure of which, in the reasonable judgment of the record custodian . . . is likely to jeopardize public safety.” Because of its vagueness and the discretion it appears to afford government bodies, this exemption has been invoked as a frequent rationale for withholding documents that the public should have the right to see and which have nothing to do with public safety or terrorism. It was once even used to justify withholding a list of Massachusetts dairy farmers!

Last week, the state’s highest court struck back, with a decisive decision that confines the exemption to its original, narrow purpose: allowing government agencies to withhold documents that would facilitate terrorist acts. By its ruling in People for the Ethical Treatment of Animals, Inc. v. Dept. of Agricultural Resources, the Supreme Judicial Court has resoundingly vindicated the state public records law’s presumption of openness.

When enacted in 2002, exemption “n” was part of “An Act Providing Protections Against Terrorism.” It was designed to allow agencies to withhold, for example, the blueprints of public buildings, where disclosure of such information would threaten public safety. But the exemption’s squishy language (“reasonable judgment,” “likely to jeopardize”) gave access-wary records custodians all they needed to argue, often successfully, that particular requested documents were off-limits.

Last week’s ruling, authored by Justice Barbara Lenk, arises out of what has been a three-year battle by the PETA animal rights group for government data regarding the import and export of animals. The Department of Agricultural Resources produced some documents, but relied on exemption “n” to withhold the names and addresses of veterinarians and institutions. PETA sued, asking the Superior Court: How in the world would public release of those names and addresses aid terrorists or endanger the public? The Superior Court didn’t really answer that question, but meekly deferred to the department’s judgment, denying disclosure.

The Supreme Judicial Court saw the case differently. It is in the nature of government officials — when given the choice — to err on the side of non-disclosure. The public records law, however, is all about giving citizens the tools to pry open closed government files, so that they can perform their paramount role in a democracy: to inform themselves about what their elected and appointed representatives are doing.

Ruling for PETA, the unanimous court established some useful legal principles that should help guide future decision-making by agencies and courts. It started with the basics: Exemption “n” was enacted as an anti-terrorism measure, and thus should apply only to records that “a terrorist would find useful to maximize damage, and in that sense jeopardize public safety.”

Second, the court limited the “catch-all” language that has bloated exemption “n,” language that seemed to allow non-disclosure of not only blueprints and schematic drawings, but also “any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure.” Consistent with the public records law’s purpose, the SJC said the exemption applies to those “other records” only if their disclosure would create a risk on a par with disclosure of the types of documents primarily enumerated in the statute: “blueprints, plans, policies, procedures and schematic drawings.”

Third, the court said records custodians need to be able to prove their case before withholding documents under exemption “n.” They must make a showing “of sufficient factual heft” to demonstrate how and why disclosure would risk public safety or abet terrorism.

Perhaps most importantly, the court said the “reasonable judgment” language in the exemption does not give government agencies unlimited discretion to decide what disclosures would create public risk. Rather, when evaluating an exemption “n” claim, the court may not simply defer to the agency in question; it must decide for itself whether the decision to withhold a public record was reasonable.

The PETA ruling should undoubtedly stem the overbroad, often silly, application of exemption “n.” But the decision’s impact may well extend further, because the case provides a vivid reminder that under the public records law, close cases must be decided in favor of access. Perhaps it’s time to mount legal challenges that would take aim at some of the other Massachusetts exemptions that are commonly overused to limit the public’s right to know.  The investigative exemption, anyone?

Robert, Jeffery and Henry are attorneys at Prince Lobel Tye LLP in Boston. Robert is a member of NEFAC’s Board of Directors and can be emailed at rbertsche@princelobel.com.

Above photo provided by Flickr user abuchanterrell and used under a CC 2.0 license


NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.

Major Supporters of NEFAC for this year include the Barr Foundation, The Providence Journal Charitable Legacy Fund, The Robertson Foundation, Lois Howe McClure, The Boston Globe and Boston University. Celebration Supporters include The Hartford Courant and the John S. and James L. Knight Foundation.

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