Michael Farber v. Department of Environmental Protection - Bureau of Waste Site Cleanup (SPR 20170461)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 14, 2017 SPR17/461 Kathleen Delaplain, Esq. Senior Counsel Department of Environmental Protection 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 § IOA; 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 denied the request for Mr. Langley's handwritten notes from the November 4th meeting pursuant to Exemption (e) of the Public Records Law. This request was the subject of a previous appeal. See SPR 17 /292 Determination of the Supervisor of Records (March 16, 2017). SPR 17/292 was closed with the proviso the Department provide Mr. Farber with a supplemental response further explaining its Exemption (e) claim. This response was provided on March 30, 2017. Mr. Farber petitioned this office for further assistance and SPR 17 / 461 was opened as a result. 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 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. SPR17/461 Page2 April 14, 2017 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, § lO(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 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. Exemption (e) In the Department's initial response of February gt\ you explain that Mr. Langley's handwritten notes are kept in his personal files "to assist with potential permitting," were not shared with anyone, and are not maintained with the Department's main files. You further explained the Department's Exemption (e) claim in a supplemental response dated March 30, 2017. 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 governmental files.

Kathleen Delaplain, Esq. SPRl 7/461 Page 3 April 14, 2017 In the Department's supplemental response of March 30t\ you explain that Mr. Langley's handwritten notes are contained in a "composition notebook" that is maintained in his office and not with any other Department case files. The composition notebook is "personal to himself and [he] does not share the contents of his notebook with other MassDEP staff." The notes Mr. Langley took at the November 4, 2016 meeting were for his own personal use to "assist him in fulfilling his duties as Director ofMassDEP's Wetlands and Waterways Program." He was not the "moderator or the recording secretary of the meeting," nor the "designated note taker." Therefore, the Department claims that the notes may be withheld pursuant to Exemption ( e) of the Public Records Law. Conclusion Whereas the Department has confirmed that Mr. Langley's handwritten notes in his personal composition notebook were created purely for his own use in assisting him in "fulfilling his duties as Director of MassDEP's Wetlands and Waterways Program," as well as to "assist his recollection of the November 4, 2016, meeting and any other information for his own personal reference," and that this notebook has not been shared with anyone nor kept with Department case files, I find that the Department may properly withhold the notes from disclosure pursuant to Exemption (e). If Mr. Farber believes this November 4th meeting constitutes a violation of the Open Meeting Law, he is encouraged to contact the Division of Open Government within the Office of the Attorney General. The authority to render determinations on the provisions of the Open Meeting Law rests with the Division of Open Government, and not the Public Records Division. If Mr. Farber is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~~- Rebecca S. Murray Supervisor of Records cc: Michael Farber