Anne B. Sobol v. Department of Environmental Protection (SPR 20251517)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 12, 2025 SPR25/1517 Jakarta Childers Records Response Coordinator Department of Environmental Protection 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Jakarta Childers: I have received the petition of Anne Sobol appealing the response of the Department of Environmental Protection (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 10, 2025, Ms. Sobol requested the following: Any and all documents prepared by or in the possession of the Massachusetts Department of Environmental Protection pertaining to the jet fuel spill at Signature FBO, Hanscom Field, Bedford MA, on March 26, 2024. Please provide any and all Mass DEP reasonably completed factual studies of the March 26, 2024 jet fuel spill at Signature FBO, including factual inferences drawn from factual investigation, redacted as necessary to avoid compromise of investigative efforts. The Department responded on March 4, 2025. Unsatisfied with the Department’s response, Ms. Sobol petitioned this office, and this appeal, SPR25/1517, 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. 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

Jakarta Childers SPR25/1517 Page 2 June 12, 2025 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 Department’s March 4th Response In its March 4, 2025 response, the Department sates the following: MassDEP is withholding the following categories of documents as exempt under both the “deliberative process” exemption, M.G.L. c. 4, § 7(26)(d) and the “investigatory” exemption at M.G.L. c. 4, § 7(26)(f): --Emails between MassDEP management staff discussing what steps DEP will take related to the investigation of this matter. 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). In its March 4th response, under Exemption (d), the Department argues the following: Exemption (d) provides a limited executive privilege for policy development. . . . These emails on what steps DEP may take next and draft chronologies were only

Jakarta Childers SPR25/1517 Page 3 June 12, 2025 circulated internally in MassDEP. Therefore, they are part of MassDEP’s internal policy deliberations. The deliberative process exemption “is intended to avoid the disclosure of documents while policy positions are being developed, and the deliberative process remains ongoing and incomplete.” See the Supervisor’s decision on June 12, 2014, in Appeal No. SPR14/173, an appeal by Ethan Handwerker. Releasing draft chronologies (that may or may not be fully accurate as MassDEP is still investigating) at this stage of the investigation will cause confusion and could taint the deliberative process. The Department is allowed to make a final agency decision before putting its discussions on draft documents out into public circulation. Based on the Department’s response, although portions of the records may fall under Exemption (d), it is unclear how the records can be withheld in their entirety. Specifically, it is not clear whether the withheld records contain factual information that can be segregated from the records. The Department is reminded that “reasonably completed factual studies or reports on which the development of such policy positions has been or may be based” are not permitted to be withheld. See G. L. c. 4, §7 (26)(d); 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). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must explain whether segregable portions can be provided. 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

Jakarta Childers SPR25/1517 Page 4 June 12, 2025 effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. In its March 4th response, under Exemption (f), the Department argues the following: The “investigatory” exemption at M.G.L. c. 4, § 7(26)(f) applies to the noted documents because each relates to an on-going investigation of potential violations of Commonwealth laws and regulations, and release of this information (especially in draft form) to the public could undermine the Commonwealth’s ability to enforce such laws and regulations. The materials do or may constitute evidence in an active investigation (the facts may not be accurate in them because some are drafts and this is an active investigation), and their disclosure could interfere with enforcement proceedings (whether administrative or before a judge). Based on the Department’s response, it is unclear how the responsive records constitute investigatory materials. Further, the Department did not demonstrate how disclosure of the withheld records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest,” as required to withhold records under Exemption (f). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Ms. Sobol 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. Sobol may further appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Anne Sobol