Christine Rioux v. Executive Office of Energy and Environmental Affairs (SPR 20231604)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 25, 2023 SPR23/1604 Elizabeth Doherty, Esq. Deputy General Counsel Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Doherty: I have received the petition of Christine Rioux appealing the response of the Executive Office of Energy and Environmental Affairs (Office) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On March 29, 2023, Ms. Rioux requested “…any and all background documents, policy directives or memos, presentations, and internal correspondence that will clarify the MEPA regulations and your interpretations of them regarding the following issues: 1. Land alteration – what constitutes land alteration and what does not. 2. Impervious and previous surface – what constitutes both and how to calculate and interpret net new impervious surface. 3. Fail Safe criteria 11.04(1)(b)(1) and (2) – why are only ‘types’ of damage that did not exist prior to 1998 considered, rather than actual damage; the basis and original intent of the fail safe regulations described in detail; examples of damage to the environment that have met either of these two criteria.” On April 3, 2023, Ms. Rioux revised her request to include “[a]ll documents and correspondence on the Northeast Metro Tech School including emails submitted in response to the petition I submitted [on] 1/27/23.” On April 6, 2023, the Office asked Ms. Rioux to limit the scope of her request. Ms. Rioux responded by limiting her March 29th request to “…background documents still currently used, considered [and] referenced in rulings.” 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

Elizabeth Doherty, Esq. SPR23/1604 Page 2 July 25, 2023 Previous appeal This request was the subject of a previous appeal. See SPR23/0778 Determination of the Supervisor of Records (May 1, 2023). The Office provided responses on May 12, 2023 and July 7, 2023. Unsatisfied with the responses, Ms. Rioux petitioned this office and this appeal, SPR23/1604, 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 agency or municipality 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); 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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Office’s May 12th response In its May 12, 2023 response, the Office stated the following: After a reasonable search, we have located the attached records responsive to your request. In addition to these records, please see the following website to access the MEPA public comment portal, which includes all viewed, accepted, and submitted comments in response . . . Additionally, background documents reflecting changes to the MEPA regulations, which are used by MEPA staff to interpret the MEPA law, are memorialized and made public at this address: . . . Please note that certain records are being withheld in accordance with M.G.L. c. 4, § 7, cl. 26(d), which exempts from the definition of “public record,” records that relate to policy positions being developed by the agency. In the interest of time and consistent with the Supervisor of Records’ Determination SPR23/0778, we are sending responsive records on a rolling basis.

Elizabeth Doherty, Esq. SPR23/1604 Page 3 July 25, 2023 The office will continue to search for responsive records and send additional responsive records, to the extent they exist. The Office’s July 7th response In its July 7, 2023 response, the Office stated the following: I have located approximately 625 items that I have been reviewing to determine which records are responsive to your request and which may require redactions. I apologize for the delay and expect to send you responsive materials by EOD Monday, July 10th. Ms. Rioux did not receive any further communications from the Office prior to filing this appeal. Current appeal In her current appeal, Ms. Rioux states the following: In the May 12th letter, Ms. Doherty states ‘After a reasonable search, we have located the attached records responsive to your request’, however, only one email from one person was attached. She provided a link to the MEPA comment portal, which was not what I requested. I am certain many more documents and correspondence, including emails, were exchanged between various parties, including the NEMT Project staff, members of the public, and MEPA staff that have not been provided. The only other attachments included by Ms. Doherty in her Response were my petition to Ms. Kim and Ms. Kim’s ruling on my petition, both of which I have been in possession of because of my role in that matter. It is unclear why she would send my own documents back to me in response to my records request. Ms. Doherty provided a link to regulatory updates that have nothing to do with the topics I listed. She noted that “certain records are being withheld in accordance with M.G.L. c. 4, § 7, cl. 26(d), which exempts from the definition of ‘public record,’ records that relate to policy positions being developed by the agency. I was seeking documents currently used to make decisions, not documents that are being developed for future decisions. On July 6th I contacted Ms. Doherty informing her I would be submitting a second appeal to the Secretary of the Commonwealth and asked her to clarify whether her non-response to item #2 was because no such documents existed. She replied that she was reviewing approximately 625 documents to send to me and needed to determine if these needed to be redacted. She said she would reply by

Elizabeth Doherty, Esq. SPR23/1604 Page 4 July 25, 2023 the end of the day July 10th. On July 7th I asked her to clarify for the parties on this thread the types of information she was considering redacting and the specific guidance, policy, and/or regulation to be used to determine if information warrants/requires redaction. I have not received any follow-up to this. These three emails are attached to this letter. Based on Ms. Rioux’s appeal and the Office’s response, it is unclear if the Office possesses additional records responsive to the request and when it intends to provide such records. 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, § 10(a)(ii). 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. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). Based on the Office’s response, I find the Office has not met its burden to withhold the requested records in their entirety pursuant to Exemption (d). In particular, the Office has not demonstrated that a deliberative process remains “ongoing and incomplete” as required by Exemption (d). See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). It is additionally uncertain how disclosure of the record would taint any ongoing deliberative process. Further, the Office is advised that any portions of the record that contain any factual information which can be segregated from the responsive record are subject to mandatory disclosure as Exemption (d) does not apply to such information. G. L. c. 66, § 10(a); see also 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). It is unclear whether such segregable portions exist in the responsive records. The Office must clarify these matters.

Elizabeth Doherty, Esq. SPR23/1604 Page 5 July 25, 2023 Provide timeframe G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Whereas Ms. Rioux’s request was submitted on March 29, 2023 and the Office indicated a further response by July 10, 2023, the Office has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the Office must provide an estimated date as to when it intends to complete the search and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Office must continue to provide responsive records on a rolling basis. Conclusion Accordingly, the Office is ordered to provide Ms. Rioux 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. Ms. Rioux may appeal the substantive nature of the Office’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Christine Rioux