Savastano, Esq., Anthony v. Department of Environmental Protection (SPR 20140061)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April3, 2014 SPR14/061 Ms. Dawn Stolfi Stalenhoef, Esq. Department of Environmental Protection One Winter Street Boston, MA 02108 Dear Attomey Stolfi Stalenhoef: This office has received the petition of Anthony C. Savastano, Esq. for the Town of Dartmouth (Town) appealing your response for the Department of Environmental Protection (Department) to his August 14,2013 request for public records. See G. L. c. 66, § 10(b); see also 950 C.M.R. 32.08(6). Specifically, Attomey Savastano requested copies of financial records relating to the individual listed as the owner of property located at 452 Old Fall River Road in Dartmouth. Attomey Savastano also requested copies of records relating to Boston Environmental Corporation (BEC). Timeliness ofR esponse to Public Records Request In a January 14, 2014 letter to Attomey Savastano, one-hundred and fifty-three days after Attomey Savastano's request, you provided a response to his request. In the letter, the Department acknowledged the delayed response, citing a misunderstanding in explaining the delay in response. Regardless of whether a misunderstanding existed between the Department and Attomey Savastano I remind the Department that its burden as a records custodian requires that all requests for public records must be met with a written response within ten (1 0) calendar days of the request. See G. L. c. 66, § lO(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. Department Response to Attorney Savastano's Request for Public Records In your January 14111 letter, you provided responsive records, withholding others pursuant to Exemptions (a), (c) and (d) of the Public Records Law. You segregated identification of withheld records into Attachments A, B, and C. As such, I will address the Department's exemption claims for each identified category of records. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Dawn Stolfi Stalenhoef, Esq. SPR14/061 Page Two April3, 2014 Attachment A The Department identified eight withheld records within Attachment A; the first six consist of financial documentation specific to a particular individual and are therefore exempt pursuant to the second clause ofExemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). This exemption contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The second clause protects intimate details of a highly personal nature while requiring a balancing of the public's right to know against the relevant privacy interests at stake. Att'y Gen. v. Ass't Comm'r of the Real Property Dep't ofBoston, 380 Mass. 623, 625 (1980). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 626 n. 2. This list is not exhaustive. In your letter you state that the six withheld records relate to an application for relief from the assessment of penalties through the Department's "Individual Ability to Pay" claim process. You claim that the public interest in disclosure does not outweigh any individual privacy interest. After review of your exemption claim as well as Attorney Savastano's response, I find the Department acted properly in withholding the six records under the first clause of Exemption (c). The withheld records relate to an application or request for government assistance in the form of relief from the assessment of financial penalties. Additionally, the disclosure of detailed information included within these records would implicate a much greater "invasion of personal privacy" than simply identifying this, or any other individual, as a tax delinquent. See Attorney General v. Collector ofLynn, 377 Mass. 151 (1979) (publicly identifying an individual delinquent in the payment of real estate taxes). The two remaining records were withheld pursuant to Exemptions (a) and (d) of the Public Records Law. G. L. c. 4, § 7(26)(a); (d). Exemption (d) is intended to avoid the disclosure of documents while policy positions are being developed and the deliberative process remains ongoing and incomplete. The deliberative process is insulated from scrutiny only until such time as the process is completed. Babets v. Secretary of the Executive Office of Human Services, 403 Mass. 230, 237 n.8 (1988). It is my understanding that the two responsive records relate to the Department's ongoing review of a specific individual's ability to pay for a landfill closure proposal. Accordingly, the Department may permissibly withhold the two records pursuant to Exemption (d) until such time as the deliberative process for the review of this proposal has completed. As such, an analysis as to the applicability of Exemption (a) to these two records is not required.

Ms. Dawn Stolfi Stalenhoef, Esq. SPR14/061 Page Three April3, 2014 Attachment B The Department withheld fifteen records within Attachment B as confidential submissions containing trade secrets in accordance with Department regulations as they operate pursuant to Exemption (a) of the Public Records Law. In a prior finding from this office, I held that the Department could permissibly withhold these records from disclosure. See SPR13/228 Determination of Supervisor of Records (February 10, 2014). After review of your exemption claim as well as Attorney Savastano's response, I decline to reverse my findings and continue to hold that these records may be permissibly withheld until such time as the Department's deliberative process has ended. Attachment C The Department withheld fifty-four records within Attachment C pursuant to Exemptions (a) and (d) of the Public Records Law, explaining that these records "reflect the Department's internal and ongoing policy deliberations related to the enforcement of its Solid Waste regulations." I am concerned by the Department's broad application ofboth exemptions to these records. It is my understanding that the Department commissioned an independent evaluation of the financial costs required to address the condition of the subject property. On October 18, 2013 the Department made publicly available the findings of Parsons Environmental & Infrastructure Group Inc. (Parsons Report). The Parsons Report provides a detailed identification of closure cost estimates. In releasing this report, and disclosing the included cost estimate information, the Department holds the burden of showing that similar cost estimate related information included within the Attachment C records may be withheld. Included within the Attachment C records are eight records that relate to, or reference the Parsons Report. Other withheld records relate to a soil analysis of the property, records that are presumed to be factual in nature and therefore not permitted for withholding under Exemption (d). Still another withheld record relates to the scheduling of a meeting with BEC. I find that the Department failed to satisfy its burden of showing that Attachment C records may be permissibly withheld pursuant under either Exemption (a) or (d). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995).

Ms. Dawn Stolfi Stalenhoef, Esq. SPR14/061 Page Four April3, 2014 The Department is hereby ordered to provide copies of responsive Attachment C records to Attorney Savastano within ten (1 0) calendar days, or provide this office with a more detailed explanation as to its exemption claims for this category of records. Accordingly, this administrative appeal is closed. Supervisor of Records cc: Mr. Anthony C. Savastano, Esq.