Wilson G. Dobson, P.E. v. Executive Office of Energy and Environmental Affairs - Department of Conservation and Recreation (SPR 20160705)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 16, 2016 SPR16/705 Ms. Bridget Connelly Assistant General Counsel Department of Conservation and Recreation 251 Causeway Street, Suite 600 Boston, MA 02114 Dear Attorney Connelly: I have received the petition of Wilson Dobson appealing the response of the Massachusetts Department of Conservation and Recreation (Department) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, on May 9, 2016, Mr. Dobson requested GIS information or GPS coordinates or any other method the Department uses to locate trails. Previous appeals This request was the subject of previous appeals. See SPR16/394 Determination ofthe Supervisor ofRecords (June 23, 2016); SPR16/458 Determination ofthe Supervisor of Records (July 12, 2016). In my July 12 determination I found the Department failed to rebut any presumption that any existing responsive records are public records. The Department responded to this order on August 29, 2016 by claiming the responsive records may be withheld under Exemptions (f) and (n) of the Public records Law. G. L. c. 4, § 7(26)(f), (n). Mr. Dobson appealed this response and the present appeal (SPR16/705) was opened. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10 ( 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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/p re

Ms. Bridget Connelly SPR16/705 Page2 September 16, 2016 Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. The Department's August 29 response In the Department's August 29 you explain the Department "is withholding GIS information identifying the geographical location of unauthorized trails and activity in the Ware River Watershed pursuant to G. L. c. 4, § 7(26)(f) & (n)." Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, §7 (26)(f) A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (n) Exemption (n) applies to:

Ms. Bridget Connelly SPR16/705 Page 3 September 16, 2016 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 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 subsection (b) of section 10 of chapter 66, is likely to jeopardize public safety. G. L. c. 4, §7 (26)(n) Exemption (n) allows for the withholding of certain records which if released would undermine public safety. It is the duty of the custodian of records to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety. Given the unique statutory construction of Exemption (n), records released to a particular individual through this exemption need not be released to all subsequent requestors. You indicate the Department is "currently investigating all trails and activity in Watershed areas in the state." You further explain "[d]isclosure ofthe geographical location of unauthorized trails would jeopardize land surrounding an important public water supply source and prejudice the possibility of effective law enforcement aimed at preventing the future degradation ofthe public water supply." I find the Department has not met is burden to explain the applicability of Exemptions (f) and (n) to the responsive records. With respect to Exemption (f), the Department does not explain the subject ofthe investigation nor describe how the requested records are part of an investigation; therefore, it has not demonstrated how disclosure of the responsive records "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). In addition, the Department has not explained how release of the responsive records is likely to jeopardize public safety as required by Exemption (n). I understand an attorney on my staff contacted you about this matter and provided a copy of Mr. Dobson's appeal petition. You indicated the Department would provide a supplemental response to the request that addresses the issues described above. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Department provide Mr. Dobson with a revised response to the request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any such response must be

Ms. Bridget Connelly SPR16/705 Page 4 September 16, 2016 provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma. us. cc: Mr. Wilson Dobson