Eileen W. Mooney v. Department of Environmental Protection (SPR 20250815)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 4, 2025 SPR25/0815 Sean Gonsalves, R.S. Regional Project Analyst Department of Environmental Protection Western Regional Office 436 Dwight Street Springfield, MA 01103 Dear Mr. Gonsalves: I have received the petition of Eileen Mooney, of The Newsletter, appealing the response of the Department of Environmental Protection (Department/MassDEP) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 10, 2025, Ms. Mooney requested, “... all correspondence between anyone at DEP and Housatonic Water Works since Feb. 1, 2025.” The Department provided responses on February 25, 2025, March 19, 2025, and March 24, 2025. Unsatisfied with the Department’s responses, Ms. Mooney petitioned this office and this appeal, SPR25/0815, 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. 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

Sean Gonsalves SPR25/0815 Page 2 April 4, 2025 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. Current appeal In her appeal, Ms. Mooney states, “I received some documents March 24 but have concerns about some and thus appeal to you for assistance. I request that the Public Records Division please determine whether three documents supposedly related to an investigation may be kept from me. I fail to see how disclosure is not allowed since HWW and DEP are aware of their communication so that part of an investigation is already known to the parties involved.” The Department’s February 25th, March 19th, and March 24th Responses In its February 25, 2025 response, the Department stated, “[a] Public Records Request would be the most direct route to access this document from MassDEP. The letter was featured in full in a recent Berkshire Eagle article here ...” In its March 19, 2025 response, the Department stated, “[t]he only active Public Records Request that the Western Region of MassDEP has on file for you was received 3/10/25. That request is currently being reviewed.” In its March 24, 2025 response, the Department produced certain responsive records with redactions under Exemption (c) and withheld other documents under Exemption (f) of the Public Records Law. With regard to the Exemption (c) redactions, the Department advised, “[p]ursuant to the ‘privacy’ exemption, M.G.L. c. 4, § 7(26)(c), we have redacted potentially personal email addresses and names from the blind carbon copy field in one document.” Based on Ms. Mooney’s appeal, it does not appear she is contesting the redactions made under Exemption (c). 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

Sean Gonsalves SPR25/0815 Page 3 April 4, 2025 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 Department advised that “MassDEP is withholding three documents as exempt under the ‘investigatory’ exemption at M.G.L. c. 4, § 7(26)(f). The three documents are emails and a letter between MassDEP and HWWC regarding enforcement. This matter is under active investigation and enforcement by MassDEP. The ‘investigatory’ exemption at M.G.L. c. 4, § 7(26)(f) applies to the noted documents because they relate to an on-going investigation of potential violations of Commonwealth laws and regulations, and release of this information to the public could undermine the Commonwealth’s ability to enforce such laws and regulations. The materials constitute evidence in an active investigation, and their disclosure could interfere with enforcement proceedings.” Although the Department claims that there is an “active investigation and enforcement by MassDEP,” it is not clear how disclosure of the three documents would disclose confidential investigative techniques, procedures or sources of information. Further, it is unclear how the records in their entirety can be withheld under Exemption (f). Specifically, the Department did not demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must clarify. Conclusion Accordingly, the Department is ordered to provide Ms. Mooney 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 the response to this office at pre@sec.state.ma.us. Ms. Mooney may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1).

Sean Gonsalves SPR25/0815 Page 4 April 4, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Eileen Mooney