Radulski, Esq., Walter v. Department of Environmental Protection- Northeast Regional Office (SPR 20140655)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords February 18, 2015 SPR14/655 Mr. Michael W. Dingle, Esq. MassDEP Office of the General Counsel One Winter Street Boston, MA 02108 Dear Attorney Dingle: I have received a petition from Walter T. Radulski, Esq., on behalf of his client, appealing the response of MassDEP to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Attorney Radulski requested a copy of records related to an Order to Decease and Desist issued to the Leo J. Martin Golf Course by the Health Agent of the Town of Weston (Town). Heidi M. Zisch, MassDEP ChiefRegional Counsel for the Northeast Regional Office, provided some responsive records, denying access to other records, citing the investigatory exemption to the Public Records Law. G. L. c. 4, § 7(26) (f). The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 1 0( c); 950 C.M.R. 32.08(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 town 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 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 ( 1995) (custodian has the burden of establishing the applicability of an exemption). In his appeal, Attorney Radulski explains his interest in obtaining the withheld records as they relate to a potential private action by his client. Please note that the personal status of Attorney Radulski's client in the matter in question does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Heidi M. Zisch, Esq. SPR14/655 Page Two February 18,2015 Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, the public status of the withheld records will be determined on the content of the record rather than the personal interest of Attorney Radulski's client. In its response MassDEP explained, with detail, its rationale in withholding the remaining records. MassDEP described each record withheld, and included an explanation specific to each record. MassDEP disclosed "approximately 30 pages" ofrecords to Attorney Radulski. These disclosed records included correspondence between MassDEP and the Town, information that included the identity of several third party vendors who completed remediation and removal work related to the Order to Cease and Desist. In its responses, as well as correspondence to this office associated with Attorney Radulski's appeal, MassDEP explained that its investigatory authority was not yet concluded in this matter. Attorney Radulski was copied on MassDEP's communications with this office. As the Public Records Law states, "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). The September response by MassDEP did not contain the specificity required in a denial of access to public records. Accordingly, I advise MassDEP that to comply with the Public Records Law and Regulations MassDEP must provide specificity with respect to any denial of access to public records. This requires a records custodian to cite an exemption, and specifically explain the applicability of the exemption to the requested records. The initial response by MassDEP did not contain this specificity. Subsequent to its notice that this appeal was open, this office received your November letter. In this letter, you explained that the MassDEP investigation is ongoing, further explaining, "disclosure of the documents could compromise its investigation and might alert potential targets to details of the investigation." You further stated, "disclosure of the documents could unduly prejudice its ability to pursue appropriate enforcement of violations of environmental laws and regulations." I find the July and November letters cured MassDEP's deficiency with respect to the specificity requirement permitting withholding of the responsive records at this time. The judicial discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that material exempt from disclosure under the Public Records Law may be available to certain parties through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998) (material exempted from disclosure pursuant to the Public Records Law is not automatically privileged from discovery if a criminal defendant moves for its production).lt may be preferable for Attorney Radulski to seek access to the responsive records through the judicial process rather

Ms. Heidi M. Zisch, Esq. SPR14/655 Page Three February 18, 2015 than through the Public Records Law. Accordingly, whereas MassDEP has satisfied its burden in withholding the responsive records, I will consider this ad inistrative appeal closed. illiams cc: Mr. Walter T. Radulski, Esq.