Loretta LaCentra v. Department of Environmental Protection- Northeast Regional Office (SPR 20192292)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 27, 2019 SPR19/2292 Heidi M. Zisch, Esq. MassDEP-NERO Counsel Massachusetts Department of Environmental Protection 205B Lowell Street Wilmington, MA 01887 Dear Attorney Zisch: I have received the petition of Loretta LaCentra appealing the response of the Department of Environmental Protection (MassDEP) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1 ). Specifically, Ms. LaCentra requested certain reports pertaining to the "Wheelabrator facility" located in Saugus, Massachusetts. MassDEP initially responded on August 19, 2019 by providing ce1iain records but denying access to others· under Exemption (f ) of the Public Records Law. G. L. c. 4, § 7(26)(:f). 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, § IOA(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 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. Appeal In its August 19th response MassDEP references Exemption (f) and asserts "[t]he following responsive seven (7) inspection reports of the Wheelabrator facility in the time pel'iod 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

Heidi M. Zisch, Esq. SPR19/2292 Page 2 November 27, 2019 that your request covers relate to ongoing investigatory matters and are being withheld because disclosure of those records would compromise MassDEP's investigative efforts ...." In her appeal petition Ms. LaCentra indicates "[s]ince almost three months has elapsed since the time this letter was received,· I would imagine that the investigation has now been completed. If in fact that is the case, then my receipt of these documents would no longer compromise the investigative efforts. If for some reason this investigation remains open, then I would appreciate a time frame for completion of this investigation so I may request these documents at a later date." Subsequent to the opening of this appeal, you informed this office that MassDEP provided responsive records to Ms. LaCentra on November 21, 2019. In a November 25th email to this office you indicate, in paii, "MassDEP has now provided copies of all of the records that were previously withheld because these records no longer qualify as exempt from disclosure now that MassDEP's enforcement investigation is concluded." Whereas MassDEP has now provided records that are at issue in this appeal, I will consider this appeal closed. If issues remain unresolved, Ms. LaCentra may appeal the substantive nature of MassDEP's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, . Rebecca S. Murray Supervisor of Records cc: Loretta LaCentra