Michael Farber v. Department of Environmental Protection - Bureau of Waste Site Cleanup (SPR 20170292)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 16, 2017 SPR17/292 Kathleen Delaplain, Esq. Department of Environmental Protection Legal Department 1 Winter Street Boston, MA 02108 Dear Attorney Delaplain: I have received the petition of Michael Farber appealing the response of the Department of Environmental Protection (Department) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Farber requested a copy of: 1. All communications with the Town of Orleans officials and Eversource Energy pertaining to a project involving Cedar Pond in the Town of Orleans, and 2. The handwritten notes taken by Lealdon Langley, Director of the Department's Wetlands and Waterways Program, at the November 4, 2016 meeting at the Town of Orleans Town Hall. The Department provided Mr. Farber with all the records of communications in response to his Request Number 1. However, the Department is denying the request for Mr. Langley's handwritten notes from the November 4th meeting pursuant to Exemption (e) of the Public Records Law. Mr. Farber appealed. 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, § lOA(d); 950 C.M.R. 32.03(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, § 1O (b )(iv), 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Kathleen Delaplain, Esq. SPR17/292 Page 2 March 15, 2017 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. The Department's Records Access Officer explained in its initial response of February gth that Mr. Langley's handwritten notes are kept in his personal files to assist with potential permitting, were not shared with other Department employees or anyone else, and are not maintained as part of the Department's main files. Therefore, the Department claims that the notes may be withheld pursuant to Exemption ( e) of the Public Records Law. Exemption ( e) applies to: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7 (26)(e) Exemption ( e) may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption ( e) limits its application to work related records that can be characterized as "personal" to the employee, such as notes created to refresh an employee's memory of a work related activity or notes created by an employee to assist in preparing reports for other employees of the governmental entity. Notes that have been shared by the employee may not be considered to be "personal" pursuant to Exemption (e ). The second criterion of Exemption (e ) requires that the notes not be kept in a government file. Under the exemption, "files of the governmental unit" excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption ( e) and a records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental files. It is my understanding that the meeting concerned Cedar Pond in the Town of Orleans project and that those in attendance at the November 4th meeting included Department employees/officials including Mr. Langley, Town of Orleans officials and Eversource Energy employees/officials. In a November 15, 2016 email from Eversource Energy's General Counsel to Mr. Langley states that, "Your [Mr. Langley] presentation was extremely helpful for all in attendance to learn about the regulatory framework and various environmental impacts associated with the alternatives discussed. We are meeting internally here and will be following up with the Town in the very near future."

Kathleen Delaplain, Esq. SPRI 7/292 Page 3 March 15, 2017 The Department has merely recited language in Exemption ( e) to support withholding the notes from the November 4th meeting, but has not substantiated its claim that the notes are "personal" to Mr. Langley. The Department's RAO Julianne E. Ture stated in her February 8 letter, the notes are "to assist in the potential permitting process." By telephone on March 15th, you informed a Public Records Division attorney that the Department will provide a response to specifically explain its Exemption ( e) claim. A copy of the appeal file was provided to the Department by the Public Records Division via email. Conclusion Accordingly, I find that the Department has not met its statutory and regulatory burden of supporting its Exemption ( e) claim to withhold the responsive handwritten notes. Whereas the Department has indicated that it will provide another response to Mr. Farber, I will consider this appeal closed with the proviso that the Department provides the response in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Michael Farber, Julianne E. Ture