Eileen W. Mooney v. Department of Environmental Protection (SPR 20251079)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 5, 2025 SPR25/1079 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.” Prior Appeal The requested records were the subject of a prior appeal. See SPR25/0815 Determination of the Supervisor of Records (April 4, 2025). In my April 4th determination, I found that it was unclear how disclosure of the records would disclose confidential investigative techniques, procedures or sources of information. Further, it was unclear how the records in their entirety can be withheld under Exemption (f). The Department provided a response on April 18, 2025. Unsatisfied with the Department’s response, Ms. Mooney petitioned this office and this appeal, SPR25/1079, 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). 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 SPR25/1079 Page 2 May 5, 2025 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. Current appeal In her appeal, Ms. Mooney states, “I understand why a party being investigated should not see a document relevant to an investigation of which that party may not be aware but that is not the case here -- in this case, the party being investigated and the investigating party sent the documents to each other so both are aware of them.” The Department’s April 18th Response In its April 18, 2025 response, the Department expanded on its Exemption (f) claim of the Public Records Law to withhold the requested documents. 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.

Sean Gonsalves SPR25/1079 Page 3 May 5, 2025 The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. In its response, the Department asserted the following: [a]sking for these documents and then potentially printing them publicly or using them to write a story in the NEWSletter may interfere with our enforcement proceedings by prematurely disclosing the Department’s case prior to resolution through the agency’s enforcement process. “The exemption provided in G. L. c. 4, [7(26)], recognizes that the disclosure of certain investigatory materials could detract from effective law enforcement to such a degree as to operate in derogation, and not in support, of the public interest. Included among the purposes in providing this exemption would be the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with [law enforcement] concerning matters under investigation, and the creation of initiative that [law enforcement] might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976).… Revealing to the news media (THE NEWSletter) any communications with a party under investigation or potential enforcement would prejudice MassDEP’s investigative efforts by prematurely revealing allegations and positions, which could then be published for all to see before there is even a full and complete story to tell.... Not only would this prevent effective enforcement in the matter at hand by the prospect of unfairness to the party under investigation and chilling candor in these sorts of communications, it could cause a party under investigation to hesitate to cooperate. The Department must be able to obtain a full and accurate factual picture of the situation in the first instance, including acquiring and evaluating any facts directly from any party under investigation and/or their representative, prior to making public any communications with such parties. Once the agency has issued a finalized enforcement document, if necessary (such as an administrative consent order), these communications could potentially be disclosed. However, if the agency starts sharing with THE NEWSletter or the public the details of communications with a party under investigation prematurely, it is akin to prematurely disclosing the agency’s case prior to trial, and risks unfairness to those under investigation, especially if they have done nothing wrong and the

Sean Gonsalves SPR25/1079 Page 4 May 5, 2025 publicity proves unfair, incomplete, or inaccurate. Premature publicity is likely to be inaccurate before all the facts are gathered. The Department should not have to conduct its investigation of any potential violations and enforcement publicly in the news media. Doing so could also decrease the possibility of any resolution of the matter through settlement. The Department would then have to litigate the matter to resolve it, which will delay resolution to the detriment of the public interest and will utilize significantly more Department resources, all of which runs counter to effective enforcement. Based on the Department’s response, I find the Department must identify the records in its possession that are responsive to the request. To deny access to a record or portion of a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Further, it is unclear how all the records are related to the ongoing investigation and whether segregagble portions can be provided. See Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must clarify this. 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). Sincerely, Manza Arthur Supervisor of Records cc: Eileen Mooney