The state agriculture department refused to release a list of dairy farmers.
Chicopee withheld the budget for its SWAT team.
Massachusetts State Police wouldn’t say how much they spent in salaries to operate each station.
All the denials had one thing in common: Agencies cited an exemption to the Massachusetts public records law that was enacted after the Sept. 11, 2001, attacks to keep building blueprints and other sensitive documents out of the hands of terrorists. The exemption allows agencies to withhold certain documents if, in the reasonable judgment of the records holder, the disclosure is “likely to jeopardize public safety or cyber security.”
But government watchdogs say some agencies have gone overboard, using the exemption to withhold budgets and other routine documents from journalists and local residents.
“The exemption is being broadly overused,” said Laura Rótolo, staff counsel with the American Civil Liberties Union of Massachusetts. “It was never intended to be catch-all for all documents that relate to public safety.”
Now the exemption is getting its first real test in the courts.
On Monday, the Supreme Judicial Court is slated to hear arguments about whether the Department of Agricultural Resources can withhold the names and contact information of veterinarians and institutions that imported monkeys for research from out of state.
The records were originally requested by the People for Ethical Treatment of Animals three years ago. But the department claimed it had to remove the names from the health certificates to protect the researchers and their employers, citing the exemption.
Suffolk Superior Court Justice Christopher J. Muse sided with the agency in 2015, noting “animal research conducted on non-human primates has been the target of extremist groups and criminal activities throughout the United States.” But PETA appealed, arguing the government never proved that releasing these specific records would put anyone at risk.
PETA says the names and locations of animal research facilities are already available on the Internet. But the group says it wants the information on who purchased the monkeys so it can trace the sales process, examine how the animals were treated, and let the public know how federal research dollars were spent.
“We pay for the research and we ought to be able to find out what they are doing,” said Martina Bernstein, a PETA Foundation lawyer. Bernstein acknowledged that there have been scattered reports of vandalism by activists over the years, but insists the reports were unverified and didn’t result in any deaths or physical injuries.
In a separate appellate case, the courts are also mulling whether the State Police can legally withhold from The Boston Globe the dates of birth for state troopers.
The Globe originally asked for the information so it could look up the driving records of officers who had been involved in serious crashes or charged with drunken driving. (The Registry of Motor Vehicles requires both names and dates of birth to retrieve someone’s driving history, because so many people share the same name.)
‘The exemption is being broadly overused. It was never intended to be catch-all for all documents that relate to public safety.” ’Laura Rótolo, American Civil Liberties Union of Massachusetts staff counsel
Suffolk Superior Court Judge William F. Sullivan last year sided with the Globe, noting that the Globe promised not to publish the dates of birth and the City of Boston had already released similar information about its employees. But the State Police appealed the ruling, saying providing the information would put troopers at risk. That case is pending.
Attorney General Maura Healey, who is defending both agencies in the lawsuits, declined to comment. Governor Charlie Baker’s office said it expects agencies to comply with the law but also honor their commitment to keep the public and government workers safe.
In some other cases, agencies eventually backed down after citizens fought the denials.
For instance, the Department of Agricultural Resources refused to release a list of dairy farmers to a lawyer trying to help seasonal farm workers, citing the terrorism exemption. The department suggested it needed to safeguard information about the state’s “food supply infrastructure.”
“I was surprised,” said Billy Peard, the Springfield attorney who asked for the list. “I suspect the Legislature had in mind things like nuclear power plant data, etc.” — not dairy farms.
The department eventually agreed to release the list in 2015 after Peard threatened to sue and successfully appealed to the secretary of state’s office, which helps oversee the public records law.
In another case, Chicopee initially refused to release any documents about its SWAT team, including its budget. The department later agreed to release at least some records after the requestor appealed.
But other agencies wouldn’t budge.
For instance, the State Police refused to say how much they spend in payroll for each location. The police said they don’t have a budget for each location and couldn’t release the raw list of salaries by station, because it would reveal how many people work at each location. State Police also rejected a separate request for the number of employees at each station, citing the terrorism exemption.
“Disclosing staffing numbers for each barracks would be detrimental to the security and safety of uniformed members, the barracks themselves, and the general public,” wrote Jenniffer P. Migliaccio, a department attorney. That’s despite the fact that employment numbers for several stations, including Millbury and Westfield, are already posted on the department’s own website.
Separately, Fall River police declined to release the dates and locations of gunfire detected in the city to a journalist from the Center for Investigative Reporting.
Fall River said the data could potentially let criminals know which parts of the city were not covered by its sensors or even reveal the location of the sensors themselves.
The secretary of state’s office upheld the denial in 2015, despite the fact that the reporter said he had received similar data from more than two dozen other departments across the country.
Former governor Jane Swift, who originally proposed the law, declined an interview request. But at the time, she told the Legislature it was only intended to protect certain types of sensitive records, such as security plans, threat assessments, and records showing details of critical infrastructure.
“This legislation carves out a very narrow exemption to the definition of public records for those materials pertaining to public safety,” she wrote in June 2002.
She signed the measure into law two months later as part of a broader act to deter terrorism.
But some watchdogs say agencies have gone well beyond the original intent.
“I am happy that the Supreme Judicial Court is finally going to bring some attention to this exemption,” said Jeffrey J. Pyle, a Boston attorney for Prince Lobel Tye who has handled many public records disputes.
“The breadth and vagueness of the exemption has troubled me for a long time.”Todd Wallack can be reached at firstname.lastname@example.org. Follow him on Twitter @twallack.