Eileen W. Mooney v. Department of Environmental Protection (SPR 20251397)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 2, 2025 SPR25/1397 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 Appeals The requested records were the subject of prior appeals. See SPR25/0815 Determination of the Supervisor of Records (April 4, 2025) and SPR25/1079 Determination of the Supervisor of Records (May 5, 2025). In my May 5th determination, I found that the Department must identify the records in its possession that are responsive to the request. The Department provided a response on May 16, 2025. Unsatisfied with the Department’s response, Ms. Mooney petitioned this office and this appeal, SPR25/1397 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

Sean Gonsalves SPR25/1397 Page 2 June 2, 2025 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 do not understand and thus do not accept the reason given by the Department of Environmental Protection for not receiving documents exchanged between it, the party apparently conducting an investigation, and Housastonic Water Works, the party apparently being investigated ... Providing information of an investigation would seem to be in the public interest, especially as it could affect the purchase price, the legal actions and the health of HWW customers and their families. Therefore, I again request the documents, which, as DEP has stated, are already known to both the sender and the recipient.” The Department’s May 16th Response In its May 16, 2025 response, the Department stated, “[o]n March 24, 2025, the Department produced the responsive documents. On April 18, 2025, April 30, 2025, and May, 1, 2025, [the Department] also provided supplemental responses regarding the withheld documents.” The Department cited Exemption (f) of the Public Records Law to withhold four [of] the 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

Sean Gonsalves SPR25/1397 Page 3 June 2, 2025 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. 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. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f): [1] The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials; [2] The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or [3] Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. In its response, the Department asserted the following: Three documents we are withholding are emails and a letter between MassDEP and Housatonic regarding potential enforcement. The fourth document consists of emails between MassDEP counsel (attorneys) and Housatonic’s attorney. This matter is under active investigation by MassDEP for potential violations of Commonwealth laws and regulations. The “investigatory” exemption at M.G.L. c. 4, § 7(26)(f) applies to the noted documents because they relate to an ongoing investigation of potential violations of Commonwealth laws and regulations, and

Sean Gonsalves SPR25/1397 Page 4 June 2, 2025 the release of this information to the public could undermine the Commonwealth’s ability to enforce such laws and regulations. As requested by the Supervisor’s Office, we offer an additional description of the four (4) withheld documents that are of MassDEP communications with Housatonic. 1. Letter to Housatonic Water Works (“Respondent”), dated February 25, 2022, from [an identified individual] MassDEP ... Regional Office. 2. 2/25/25 8:48 AM Email from [an identified individual], DEP ... to Respondent regarding the Letter to Housatonic Water Works, with attached Letter to Housatonic Water Works. 3. 2/25/25 10:07 AM Email from Respondent to [an identified individual] regarding Letter to Housatonic Water Works. This document also includes the above 2/25/25 8:48 AM Email. 4. Four (4) page email document regarding Housatonic Water Works Company including: 2/28/25 5:13 PM Respondent’s Attorney’s Email to DEP [an identified] Attorney; 2/28/25 5:41 PM [an identified individual] Email to Respondent’s Attorney; 3/3/25 11:50 AM DEP [an identified] Attorney Email to Respondent’s Attorney; 3/4/25 11:58 AM Email to Respondent’s Attorney; 3/4/25 1:25 PM Email from Respondent’s Attorney to [an identified] Attorney; 3/4/25 2:52 PM [an identified] Attorney Email to Respondent’s Attorney. In our May 1, 2025 email to you, we said, in any investigation, the party under investigation is likely one of the best sources of information, if they are cooperating and communicating. Asking for these documents, which are our communications with Housatonic, and then potentially printing them publicly now or using them to write a story about them now in THE NEWSletter may interfere with our enforcement proceedings. 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 [to the press] prior to trial [actually, here prior to the DEP even knowing if there is a case], 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

Sean Gonsalves SPR25/1397 Page 5 June 2, 2025 completely candid in recording their observations, hypotheses and interim conclusions. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976)... These communications are exempt under the Investigatory Exemption because, at this time, revealing our communications with a party under investigation to THE NEWSletter could potentially chill communications and discourage them to come forward and speak freely with us concerning matters under investigation. This potentially could prevent effective enforcement of the Commonwealth’s laws and regulations. Again, 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 fair 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. Where the records pertain to an ongoing investigation and the Department claims that disclosure would chill the cooperation of parties to the investigation, I find that the Department may permissibly withhold the requested records under Exemption (f) of the Public Records Law at this time. It should be noted 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. If Ms. Mooney is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Eileen Mooney