Scott Duncan v. Executive Office of Energy and Environmental Affairs (SPR 20243172)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 6, 2024 SPR24/3172 Katrina Chicojay Moore, Esq. Associate General Counsel Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Moore: I have received the petition of Scott Duncan appealing the response of the Executive Office of Energy and Environmental Affairs (Office/EEA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 4, 2024, Mr. Duncan requested emails that were about himself between two identified individuals from September 30 to October 4, 2024. Previous Appeal This request was the subject of a previous appeal. See SPR24/2937 Determination of the Supervisor of Records (November 6, 2024). In my November 6th Determination, I ordered the Office to identify the records in its possession that it is withholding under Exemption (f) of the Public Records Law and for the office to clarify how the records, in their entirety, relate to an ongoing investigation. On November 19, 2024, the Office provided a response. Unsatisfied with the Office’s response, Mr. Duncan petitioned this office and this appeal, SPR24/3172, 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 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

Katrina Chicojay Moore, Esq. SPR24/3172 Page 2 December 6, 2024 order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y 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 November 19th Response In its November 19, 2024 response, the Office cited Exemption (f) of the Public Records Law to withhold the requested records in their entirety. 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 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. Att’y 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. In its response, the Office states: … EEA is in possession of one email chain between [three identified individuals] of the Massachusetts Environmental Police that is responsive to your request. This record is evidence compiled out of the public view by investigatory officials in relation to an active ongoing internal personnel investigation by MEP into a complaint of workplace retaliation, which if upheld would constitute a violation

Katrina Chicojay Moore, Esq. SPR24/3172 Page 3 December 6, 2024 of MEP and Commonwealth policy. It is imperative that MEP maintain the integrity of the investigation and guard against outside influence, disclosure of this email chain at this time would prejudice the investigation and hinder the agency’s ability to maintain confidentiality. Accordingly, this record is being withheld under M.G.L. c. 4 § 7, cl. 26(f) because disclosing it would prejudice the ability of “law enforcement or other investigatory officials” to conduct a fair and appropriate internal personnel investigation. In light of the above, I find the Office may permissibly withhold the responsive record from disclosure under Exemption (f) at this time. Please be aware that a change in the status of the investigation could impact the applicability of Exemption (f). Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Scott Duncan