Jim Haddadin v. Department of Public Utilities (SPR 20200350)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 6, 2020 SPR20/0350 Carline Lemoine Records Access Officer Department of Public Utilities One South Station, 5th Floor Boston, MA 02110 Dear Ms. Lemoine: I have received the petition of Jim Haddadin of NBC] 0 Boston appealing the response of the Department of Public Utilities (Department) to a request for public records. G. L. c. 66, § 1O A; 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." Previous appeal The requested records were the subject of a previous appeal. See SPR20/0088 Determination of the Supervisor of Records (January 23, 2020). In my January 23rd determination, I found the Department had not met its burden of specificity to withhold responsive records, in their entirety, under Exemption (f) of the Public Records Law. Accordingly, I ordered the Department to provide Mr. Haddadin with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, on February 12, 2020, the Department provided a response, including responsive records in redacted form. The records were redacted pursuant to Exemptions (f) and (n) of the Public Records Law. G. L. c. 4, § 7(26)(f), (n). Unsatisfied with the Department's response, Mr. Haddadin petitioned this office and this appeal, SPR20/0350, 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 form or characteristics, made or received by any officer or employee of any town of the One Ashbmion 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 SPR20/0350 Page 2 March 5, 2020 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. 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. The Department's February 12'" response In its February 12, 2020 response, the Department indicates that it possesses the following records: "(1) a telephonic incident notification ('TIN') form; (2) internal e-mails developing draft information requests; (3) information requests issued by the Department's Pipeline Safety Division to the Company; ( 4) preliminary analysis and data provided by the Company to the Pipeline Safety Division; and (5) an environmental sampling repmi prepared by a consultant for the Company." The Department provided an un-redacted copy of item 3 and redacted versions of the remaining records. The Department asserts Exemptions (f) and (n). 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)(f). A custodian of records generally must demonstrate a prejudice to investigative eff01is. in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could ale1i 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

Carline Lemoine SPR20/0350 Page 3 March 5, 2020 Reinstein, 378 Mass. at 289-90. Under Exemption (f), the Department states that it withheld records pursuant to this exemption, "because it is at the beginning stage of conducting an investigation into the manhole explosions." The Department explains that "[d]uring an investigation, it is important to protect the integrity of evidence, protect the reputation of the company under investigation if no wrongdoing is found, and to protect the investigation from external influences, which may affect the objectivity of the investigation. Making these preliminary investigatory materials available to the public during an ongoing investigation, particularly where the Department has not yet determined whether further investigation is warranted by the Department, would likely jeopardize the effectiveness and integrity of the Department's investigation to the detriment of the public interest." Further, the Department explains that" .. , a company being investigated is more likely to be cooperative and forthcoming with information if the investigation is not made public. Thus, disclosure of investigatory records before the Department makes a final determination could have a chilling effect that deters 'companies from full cooperation and transparency, which would hinder the Depaiiment in fulfilling its function to ensure that companies are duly in compliance with state and federal pipeline safety laws and regulations designed to safeguard the integrity of critical infrastructure." Citing Bougas and previous Supervisor of Records determinations, the Department C(?ntends that" ... the premature disclosure of investigatory records is not in the public interest. Instead, it would hinder the Department's core regulatory function in conducting thorough investigations into pipeline safety." Exemption (n) Exemption (n) permits the withholding of 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 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 ofrecords 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

Carline Lemoine SPR20/0350 Page 4 March 5, 2020 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. Under Exemption (n), the Department indicates that it provided" ... a copy of the TIN with critical energy infrastructure information redacted." Citing the language of Exemption (n), the Department states that "[s]ome of the records are exempt because they contain information and plans related to the location of pipeline infrastructure." As such, it is" ... necessary to assert Exemption (n), to protect critical energy infrastructure." While it appears that portions of the responsive records may fall under Exemptions (f) and (n), it is unclear from the Department's response, which exemption applies to each specific redaction within the responsive records. Also, the Department claims that it withheld portions of the responsive records" ... to protect critical energy infrastructure." However, the Department did not establish how this information is the type that "a terrorist would find useful to maximize damage" as required under Exemption (n). Neither, did the Depaiiment provide "sufficient factual heft," to conclude that a reasonable person would agree that disclosure of this information, is "likely to jeopardize public safety or cyber security" as required by Exemption (n). See PETA, 477 Mass. at 289-90. Further, in the Department's response, it indicates "[t]he Department also attaches redacted copies of internal e-mails developing draft information requests, the preliminary analysis and data provided by the Company to the Pipeline Safety Division, and the environmental sampling report prepared by a consultant for the Company. The internal emails regarding information requests are draft stage documents that contain incomplete notes and opinions relating to this investigation. The analysis and data provided by the Company to the Pipeline Safety Division are preliminary and incomplete. The environmental sampling report prepared for the Company is being reviewed by the Department in the context of this investigation." Based on the Department's response, it is unclear what exemption(s) the Depa1iment is claiming to exempt these portions of the responsive records from disclosure. The Department must clarify if these records are also exempt under Exemptions (f) and (n). If not, the Department must state and explain with specificity the exemption(s) that applies to withhold these records.

Carline Lemoine SPR20/0350 Page 5 March 5, 2020 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 ten (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: Jim Haddadin