Anne B. Sobol v. Department of Environmental Protection (SPR 20251518)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 9, 2025 SPR25/1518 Jakarta Childers Records Response Coordinator Department of Environmental Protection Western Regional Office 436 Dwight Street Springfield, MA 01103 Dear Ms. 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 March 17, 2025, Ms. Sobol requested records related to “the jet fuel spill at Signature FBO, Hanscom Field, Bedford MA, on March 26, 2024, please provide me with access to any documents in the possession of the Mass Department of Environmental Protection that fit the following descriptions:” [1] for March 26, 2024, any and all fuel tickets/receipts showing the number of gallons of jet fuel and the time(s) at which Signature FBO pumped jet fuel into a Hawker jet with tail number N39QJ. [2] for the period from March 26, 2024 to April 23, 2024, any and all fuel tickets/receipts showing the number of gallons of jet fuel and the time, date, vendor and place of fueling of the Hawker jet with tail number N39QJ. The Department provided a response on March 21, 2025. Unsatisfied with the Department’s response, Ms. Sobol petitioned this office and this appeal, SPR25/1518 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, § 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 SPR25/1518 Page 2 June 9, 2025 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. 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 21st Response In its March 21, 2025 response, the Department states, “[t]he records you have requested below are being withheld under the investigatory exemption; pursuant to M.G.L. c. 4, § 7(26)(f), which provides custodians a basis for withholding: ‘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.’” 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.

Jakarta Childers SPR25/1518 Page 3 June 9, 2025 Based on the Department’s March 21st response, it is unclear whether the responsive records relate to an ongoing investigation and how they can be withheld in their entirety. Specifically, the Department did not provide any supporting information to 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 this matter. In addition, the Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. To deny access to 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). Therefore, the Department must identify the record(s) it has in its possession that the Department withheld under Exemption (f). Conclusion Accordingly, the Department is ordered to provide Ms. Sobol with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Sincerely, Manza Arthur Supervisor of Records cc: Anne Sobol