Anne B. Sobol v. Department of Environmental Protection (SPR 20252834)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 9, 2025 SPR25/2834 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/MassDEP) to requests 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. On March 17, 2025, Ms. Sobol requested records “regarding the jet fuel spill at Signature FBO, Hanscom Field, Bedford MA, on March 26, 2024.” She further specified, “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. 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 SPR25/2834 Page 2 October 9, 2025 Previous Appeals This request was the subject of previous appeals. See SPR25/1517 Determination of the Supervisor of Records (June 12, 2025) and SPR25/1518 Determination of the Supervisor of Records (June 9, 2025). In my June 9th determination, I ordered the Department to clarify its claims for withholding responsive records pursuant to Exemption (f) of the Public Records Law, and in my June 12th determination, I ordered the Department to clarify its claims for withholding responsive records pursuant to Exemptions (d) and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(d), (f). Subsequently, the Department responded to both determinations on June 26, July 3, and September 25, 2025. Unsatisfied with the Department’s responses, Ms. Sobol petitioned this office, and this appeal, SPR25/2834, was opened as a result. Subsequent to the opening of this appeal, in numerous emails to this office, Ms. Sobol reiterates her objections to the Department’s responses. 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. 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 Responses In its June 26, 2025 response, the Department provides numerous responsive records, indicates that it will continue to withhold others, and explains the following; Since the date of your initial request MassDEP has concluded its investigation into the fuel spill; therefore, we are now producing the documents regarding the one fuel spill event investigated by our staff. There was no enforcement action related to the fuel spill. The remaining documents we have pertain to the other violations for which we issued the Unilateral Administrative Order (UAO) and Penalty Assessment Notice (PAN). We are providing you with copies of the UAO

Jakarta Childers SPR25/2834 Page 3 October 9, 2025 and PAN because they reference the spill in one paragraph. We are also providing the documents and records responsive to your public records requests referenced above; however, other records regarding the violations addressed in the UAO and PAN are now part of an appeal at MassDEP’s Office of Appeals and Dispute Resolution and considered part of an on-going enforcement matter, are not public documents, and are not responsive to your request. In its July 3, 2025 and September 25, 2025 responses, the Department notes that it has concluded its investigation, and further explains that it is withholding two sets of responsive notes under Exemptions (e), and two “investigatory memoranda” under Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(e), (f). Current Appeal In her appeal petition, Ms. Sobol argues that “there is no basis to withhold the rest of DEP’s investigative memoranda, including especially the substance of the information gathered from the witnesses.” She further argues that “the fact that the investigation was conducted jointly by Spencer and Rudzinskas makes it highly likely that their ‘notes’ have been shared with each other, either directly or shared in emails reporting to each other about developments in the investigation.” Ms. Sobol further contends that “DEP has concluded its investigation into the fuel spill and has determined not to bring enforcement action. At this point, there is no basis to withhold the memoranda or notes, and I ask that you order that they be produced.” Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7(26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as “personal” to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are

Jakarta Childers SPR25/2834 Page 4 October 9, 2025 transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file.” In its July 3rd response, under Exemption (e), the Department argues the following: MassDEP responds that in addition to the documents produced pursuant to your prior requests, Environmental Strike Force investigators Stephen Spencer and Matas Rudzinskas, both employees of MassDEP, prepared and have personal notes from approximately May 2024 - March 2025 reflecting their investigation of the fuel spill. Such personal notes are not public documents pursuant to M.G.L. c. 4, § 7(26)(e). These notes, notebooks, and other materials were prepared by MassDEP employees; are personal to both Mr. Spencer and Mr. Rudzinskas; and are not maintained as part of the MassDEP files. The referenced notes are work- related but are personal to these employees and include personal reflections on work-related activities. In its September 25th response, under Exemption (e), the Department further argues the following: [The RAO] asked staff to confirm that the personal notes were kept personal and not shared with anyone, and kept separately out of the Department’s files. They did confirm that. Staff responded, saying that the personal notes were not kept in main MassDEP files but rather in personal notebooks. The notes are more precisely described as follows: 1. The personal notes of Stephen Spencer, Acting Director of the Environmental Strike Force. He confirmed that he did not share his notes with anyone. In fact, Mr. Spencer confirmed that Matas Rudzinskas did not share his notes with him and they do not review each other’s personal notes. Mr. Spencer keeps his personal notes in a spiral bound flip notebook and others in a manila folder, and those notes are not part of the DEP file and are personal to Mr. Spencer. The dates of his personal notes for this matter contained in his personal notebook include entries on or about 5/10/24, 5/14/24, 6/6/24, 6/11/24, 6/20/24, and 7/9/24 and concern observations and conversations Mr. Spencer made and had while conducting the investigation regarding the fuel spill. 2. The personal notes of Matas Rudzinskas, an Environmental Strike Force Investigator, at MassDEP. He confirmed that he did not share his notes with anyone. Mr. Rudzinskas keeps his notes in a spiral notebook and those notes are not part of the DEP file and are personal to Mr. Rudzinskas. The dates of his personal notes for this matter contained in his personal notebook include entries on or about 5/10/24, 5/14/24, 6/6/24, 6/11/24, 6/20/24, and 7/9/24

Jakarta Childers SPR25/2834 Page 5 October 9, 2025 and concern observations and conversations that Mr. Rudzinskas made and had while conducting the investigation regarding the fuel spill. Based on the information provided in the Department’s July 3rd and September 25th responses, where these two sets of notes included personal reflections, were personal to the employees, were not shared with others, and were not part of the governmental file, I find that the Department has met its burden to withhold these records under Exemption (e). See G. L. c. 4, § 7(26)(e). 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. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas, 371 Mass at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. To properly claim that Exemption (f) applies, a custodian must demonstrate that the

Jakarta Childers SPR25/2834 Page 6 October 9, 2025 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):  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;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  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 July 3rd response, under Exemption (f), the Department argues the following: MassDEP recently finalized two investigatory memoranda discussing interviews of voluntary witnesses regarding different aspects of the fuel spill. Both memoranda were prepared jointly by Mr. Spencer and Mr. Rudzinskas, compiled out of the public view, and became part of the MassDEP file on July 2, 2025. These memoranda are not public documents pursuant to M.G.L. c. 4, § 7(26)(f). Production of such memoranda, even with redactions of identifying information, would create a grave risk of directly or indirectly identifying a private citizen who volunteered as a witness. Furthermore, disclosure may prejudice the possibility of effective law enforcement, so it would not be in the public interest to make the memoranda public. Finally, the release of such investigatory memoranda would defeat the assurance of confidentiality afforded to private citizens so that they will speak openly to MassDEP about matters under investigation. Although we have identified the investigatory exemption in past responses to your requests, we wanted to clarify that even though we have concluded our investigation regarding the fuel spill, some responsive documents will remain exempt from public records. In its September 25th response, under Exemption (f), the Department further argues the following: In addition, MassDEP recently finalized two investigatory memoranda discussing interviews of witnesses, who are also voluntary witnesses regarding different aspects of the fuel spill. Both memoranda were prepared jointly by Mr. Spencer and Mr. Rudzinskas, compiled out of the public view, and became part of the

Jakarta Childers SPR25/2834 Page 7 October 9, 2025 MassDEP file on July 2, 2025. . . . In draft form or final form, these memoranda are not public documents pursuant to M.G.L. c. 4, § 7(26)(f). . . . Production of such memoranda, even with redactions of any identifying information, would create a grave risk of directly or indirectly identifying a private citizen who volunteered as a witness. The two memos at issue are of conversations with witnesses. If word gets out that MassDEP makes our memos regarding our conversations with witnesses public, which it likely would, likely no one will volunteer to speak to us confidentially anymore. This would prejudice our future enforcement. These memos are not public records and would not even be safe to redact because someone still may be able to identify exactly who these people are to their detriment, and therefore, to the detriment of any future enforcement done by the Department because no one will trust our Strike Force, an investigatory unit within MassDEP, to keep anything confidential. The Strike Force routinely relies on witnesses to conduct investigations and enforcement. Therefore, this could severely prejudice the possibility of effective law enforcement so that such disclosure would not be in the public interest. Based on the Department’s July 3rd and September 25th responses, I find that to the extent that the Department claims that disclosure of the two investigatory memoranda would compromise effective law enforcement by discouraging the cooperation of individuals who require assurances of confidentiality so that they will cooperate with investigations (the “chilling effect”), the Department has met its burden to withhold these records under Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Sobol 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)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Anne Sobol Kathleen Delaplain, Esq.