Matthew Rocheleau v. Massachusetts Environmental Police (SPR 20181703)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 29, 2018 SPR18/1703 Connor W. Fallon, Esq. Massachusetts Environmental Police 251 Causeway Street, Suite 101 Boston, MA 02114 Dear Attorney Fallon: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Massachusetts Environmental Police (MEP) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on October 22, 2018, Mr. Rocheleau requested the following records: a. "Any/all footage that was recorded by cameras that were installed in the Environmental Police Westborough office. (In a recent email, EEA spokesman ... described the footage and noted it is in the possession ofEEA)" b. "Any/all requests by [a n identified individual] to purchase/procure cameras, including but not limited to a request [the individual] made to OLE's Finance Director for one set of four cameras." c. "Any/all plans, requests for proposals, requests for quotes, and quotes received from contractors/companies for security related services and equipment for the Environmental Police office in Westborough." d. "Any/all invoices and vendor contracts for private investigator/surveillance services provided to [a n identified individual]." e. "Any/all entries into the state's finance system (MMARS) for purchases of private investigator/surveillance services" f. "Any/all records/documents/materials that were involved in the recent investigation of' operational issues' at Environmental Police which resulted in a report issued on Oct. 19." g. "Any/all materials sent to the state Ethics Commission by MEP/EEA related to the investigation into two citations issued Aug. 22, 2015." h. "Any/all emails sent by [a n identified individual] on Sept. 6, 2018 related to, or referring to, the job status of [an identified individual]." 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

Connor W. Fallon, Esq. SPR18/1703 Page2 November 29, 2018 The MEP provided a response on November 13, 2018, which included portions of the responsive records and links to an online website which contains other responsive records. The MEP also denied access to certain records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the MEP's response, Mr. Rocheleau petitioned this office and this appeal, SPRl 8/1703, was opened as a result. This appeal pertains to requests b, c, d, and e only. 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, § 1O A( 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, § 1 O(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § I O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The MEP's November 13'" response In its November 13, 2018 response, and with respect to requests (b)-(e), the MEP states that it is "withholding responsive records, as they are currently under consideration in an open internal investigation into alleged timesheet irregularities at the [MEP]." The MEP contends that "[p] remature disclosure of such records, particularly to the general public, could jeopardize the integrity of the ongoing investigation by alerting potential witnesses to the nature of the investigation and revealing investigative techniques ...." The MEP cites case law and a previous Supervisor of Records determination, SPR15/203 (April 27, 2015), to support its position. The MEP further states that "[t]o the extent that [Mr. Rocheleau] seeks general purchase records of the [MEP] [r]elevant data on state spending is available on the Comptroller's CTHRU website, available at http://www.mass.gov/comptroller/cthru/." The MEP indicates that "[Mr. Rocheleau] can use the following link to access the CTHRU page for the Massachusetts Environmental Police: http://cthruspending.mass.gov/#!/year/2018/explore/O-/cabinet secretariat (click links to 'Environmental Affairs'/ 'Direct Appropriations' [or other funding source] I 'Environmental Law Enforcement'/ 'FF' or other relevant object code). To see data from past

Connor W. Fallon, Esq. SPRI8/1703 Page 3 November 29, 2018 years, choose the appropriate year on the top of the page. To see individual payments, click on the Checkbook tab." Exemption (j) 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). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. In the MEP's response, it indicated that because the requested records" ... are currently under consideration in an open internal investigation into alleged timesheet irregularities," disclosure at this time "could jeopardize the integrity of the ongoing investigation by alerting potential witnesses to the nature of the investigation and revealing investigative techniques ...." However, in his petition for appeal, Mr. Rocheleau claims that the records" ... are not part of that or any other ongoing internal investigation. They all relate to an investigation the [MEP] closed .... The [MEP] announced it closed that investigation publicly on Oct. 19 when it released a report detailing the findings of the investigation ... [a nd] has provided other materials to the Globe related to that investigation in response to other public records requests." Mr. Rocheleau further claims that although the MEP "has previously announced the opening of an investigation into alleged timesheet irregularities," this is". .. a separate investigation and does not relate to the records [he] is seeking." Consequently, in light of Mr. Rocheleau's claims, it is unclear how the requested records are part of the ongoing investigation. The MEP must clarify this matter. Further, the MEP is reminded that in accordance with the Public Records Law, to deny access to a record, a records access officer, must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4).

Connor W. Fallon, Esq. SPR18/1703 Page4 November 29, 2018 Therefore, the MEP must identify the type ofrecord(s) it has in its possession. It is additionally uncertain why the MEP is withholding responsive records in their entirety. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). The MEP must explain why any non exempt, segregable portions of the responsive records cannot be disclosed. Additionally, Mr. Rocheleau also claims in his appeal that the MEP has " ... not provided enough information for the Globe to even identify the transactions it is seeking information about on that CTHRU website ...." G. L. c. 66, § 6A(d) provides that "[i]fthe public record requested is available on a public website pursuant to subsection (b) of section 19 of this chapter, section 14C of chapter 7 or any other appropriately indexed and searchable public website, the records access officer may furnish the public record by providing reasonable assistance in locating the requested record on the public website." As such, whereas Mr. Rocheleau claims that the information provided by the MEP is not enough to enable him identify the transactions he is seeking, this office encourages the MEP and Mr. Rocheleau to communicate further in order to enable access to responsive records. Additional responsive records In accordance with the Public Records Law, a custodian is expected to use their superior knowledge of the records in their custody to assist the requestor in obtaining the desired information. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii). A records access officer must explain whether it possesses any other responsive records and use its knowledge of the records to facilitate providing any additional responsive records. G. L. c. 66, § 1O (b )(vii). In his petition for appeal, Mr. Rocheleau claims that the MEP's "response ignores and does not account for multiple parts of items (b)-(e) of the original request seeking documentation related to requests to make purchases, plans, requests for proposals, requests for quotes received, invoices, vendor contracts, and entries into the state's finance system." Mr. Rocheleau further claims that the online website does not contain any of the aforementioned records. As such, the MEP must clarify whether it possesses additional records responsive to Mr. Rocheleau's request. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, the MEP is ordered to provide Mr. Rocheleau with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. ·

Connor W. Fallon, Esq. SPRlS/1703 Page 5 November 29, 2018 Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau