Allison Jarmanning v. Department of Public Utilities - Legal Division (SPR 20190333)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 28, 2019 SPR19/333 Rachel Cottle, Esq. Legal Division Department of Public Utilities One South Station, 5th Floor Boston, MA 02110 Dear Attorney Cottle: I have received the petition from Ally Jarmanning of WBUR appealing the response from the Department of Public Utilities -Legal Division (Department/DPU) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Jarmanning requested "[t]he latest risk assessment (may also be called the 'risk analysis,' or 'risk evaluation') for natural gas pipelines in Massachusetts." The Department responded on February 6, 2019 by providing certain records with portions redacted and/or withheld under Exemptions (c), (d), (f), and (n) of the Public Records Law. G. L. c. 4, § 7(26)(c)-(d), (f), (n). 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, § 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Rachel Cottle, Esq. SPR19/333 Page 2 February 28, 2019 Appeal In its February 6th response the Department provided responsive records, including "copies of Gas Distribution Integrity Management Program ('DIMP') records" with portions redacted under Exemptions (c), (d), (:t), and (n). The Department also refers Ms. Jarmanning to the U.S. Department of Transportation Pipeline & Hazardous Materials Safety Administration ("PHMSA") and notes it "expects that PHMSA may also be an appropriate agency to respond to your request." Based on her appeal petition, it appears Ms. Jarmanning objects to the redactions made under Exemptions (d), (:t), and (n). Exemption (d) Exemption ( d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. C. 4, § 7 (26)(d). Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d ); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). You explain that" ... the Department withheld one DIMP record and redacted two draft Exit Letters because they involve pending adjudicatory or investigatory matters." In her appeal petition Ms. Ja rmanning asserts "I am not asking for the inter-agency or intra-agency memoranda or letters related to policy positions, but the enforcement actions (so-called exit letters and the reports that are completed during the regular duties of pipeline inspectors)." I find the Department has not met its burden to show how Exemption ( d) applies to these records. Although the Department notes these records "involve pending adjudicatory or investigatory matters," it has not established the nature of the deliberation. It is also unclear how these records constitute recommendations on legal and policy matters, nor is it clear how these are not reasonably completed factual studies or reports that are subject to disclosure. Exemption (!) Exemption (:t) permits the withholding of:

Rachel Cottle, Esq. SPR19/333 Page 3 February 28, 2019 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)(±). 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, 3 71 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. You assert that " ... the Department withheld such records because they relate to inspections that are subject to pending enforcement action or additional investigation by the Department and releasing such records could compromise investigative efforts." Ms. Jarmanning asserts "DPU is not a law enforcement agency, but a state regulator." It is unclear which responsive records the Department is withholding under Exemption (f). See G. L. c. 66, § lO(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "). Further, while the Department claims the responsive records pertain to pending enforcement action or investigation, it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. As a result, it is unclear how disclosure "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). Exemption (n) Exemption (n) applies to: 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, cyber security or other infrastructure located within the

Rachel Cottle, Esq. SPR19/333 Page 4 February 28, 2019 commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection ( c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. 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. The first prong of Exemption (n) examines "whether, and to what degree, the record sought resembles the records listed as examples in the statute;" specifically, the "inquiry is whether, and to what degree, the record is one a terrorist 'would find useful to maximize damage."' People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric.Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines "the factual and contextual support for the proposition that disclosure of the record is 'likely to jeopardize public safety."' Id. at 289-90. The PETA decision further provides that "[b] ecause the records custodian must exercise 'reasonable judgment' in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian's determination given the context of the particular case." Id. With respect to Exemption (n) the Department indicates "[s]ome of the records are redacted because they contain threat and vulnerability assessments relating to the location, security, plans, procedures, and layout of particular pipeline infrastructure. Accordingly, the Department redacted inspection locations, comments, summaries, and findings relating to the outcomes ofrisk assessments." You also note that" ... the Department redacted attachments to the DIMP inspection records because they contain detailed information relating to operating pressure information and information relating to the width, length, capacity, type, and location of pipe. Disclosure of this information is likely to jeopardize public safety, tending to be useful to a person with the intent to jeopardize such infrastructure." In her appeal petition Ms. Jarmanning indicates "DPU is claiming exemption (n) in redacting inspection locations, comments, summaries, and findings relating to the outcomes of risk assessments, plus attachments to the DIMP inspection records. I believe this is an overly broad use of exemption (n) and that it is in the public interest that this information be made available." Although the information redacted under Exemption (n) may "resemble[] the records listed as examples in the statute" as contemplated in PETA , I find the Department must offer additional information relative to the requirement from PETA to provide "sufficient factual heft" to conclude that a reasonable person would agree that disclosure of the information is "likely to jeopardize public safety or cyber security." Id. at 290-91.

Rachel Cottle, Esq. SPR19/333 Page 5 February 28, 2019 Conclusion Accordingly, the Department is ordered to provide Ms. Jarmanning with a response in a manner consistent with this order, the Public Records Law and its Regulations within 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: Ally Jarmanning