Jim Haddadin v. Department of Public Utilities (SPR 20200088)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

_ January 23, 2020 ~ SPR20/0088

Carline Lemoine

Records Access Officer Department of Public Utilities One South Station, 5" Floor Boston, MA 02110

Dear Ms. Lemoine:

_. Ihave received the petition of Jim Haddadin of NBC10 Boston appealing the response of the Department of Public Utilities (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Haddadin requested “copies of all records created or received by the Department of Public Utilities that pertain to several manhole

explosions that occurred in the area of Boylston Street and Cypress Street in Brookline on Dec. 4, 2019,”

The Depattment provided Mr. Haddadin with a response on January 9, 2020, denying access to responsive records pursuant to Exemption (f) of the Public Records Law. Unsatisfied with this response Mr. Haddadin petitioned this office and this appeal, SPR20/0088, 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, § 10A(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, § 10(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...”); 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

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

Carline Lemoine SPR20/0088 Page2 January 23, 2020

burden of establishing the applicability of an exemption), Current Appeal

In its January 9" response, the Department states that pursuant to Exemption (f), the Department “withheld e-mails, a telephone incident notification form, and correspondence relating to an investigation into Boston Gas Company d/b/a National Grid gas leak in Brookline, Massachusetts, because disclosure of the documents could compromise investigative efforts.”

Exemption (f) 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)(£).

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.

Based on the Departments response, I find it has not met its burden to withhold responsive records pursuant to Exemption (f). It is unclear how disclosing responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (f). The Department must clarify this matter.

Burden of specificity; duty to segregate

Further, the Department denied Mr. Haddadin’s request, in its entirety, under Exemption (f) of the Public Records Law without supporting its withholding of the responsive reports in their entirety. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper

Carline Lemoine SPR20/0088 Page 3 January 23, 2020

Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. 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). The

Department must produce any non-exempt, segregable portions of the responsive records. G. L. c. 66, § 10(a).

Conclusion

Accordingly, the Department is ordered to provide Mr. Haddadin with a response to the request, provided 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.

Sincer Alooea

fallecen S. Murray :

Supervisor of Records

ce: Jim Haddadin