Rands, Simon v. Executive Office of Energy and Environmental Affairs (SPR 20261038)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 6, 2026 SPR26/1038 Katrina Chicojay Moore, Esq. Associate General Counsel Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Moore: I have received the petition of Simon Rands, of Cooperstown Environmental, appealing the response of the Executive Office of Energy and Environmental Affairs (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 25, 2026, Mr. Rands requested the following: [I]nformation regarding a case study conducted in April 1996 by the Office of Technical Assistance under the Executive Office of Environmental Affairs. My firm, Cooperstown Environmental, is conducting LSP work on the site in question - 400 O’Neil Blvd., Attleboro MA, formerly the Robbins Company. I recently came across a short document outlining the results of the case study entitled “Toxics Use Reduction Case Study: Elimination of Tura Chemical Reporting at the Robbins Company” (see attached), and I was hoping there might be some archived files relating to the case study (site plans, system specs, photos, etc.) that are publicly accessible. The Office responded on March 10, 2026. Unsatisfied with the Office’s response, Mr. Rands petitioned this office, and this appeal, SPR26/1038, 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

Katrina Chicojay Moore, Esq. SPR26/1038 Page 2 April 6, 2026 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 the appeal petition, Mr. Rands argues the following: I believe that the records in question should be considered publicly accessible as they fall under exception (ii) listed in the following excerpt from M.G.L c. 21I § 7(H): (H) Any information or record, in document or electronic format, received by the office in the course of providing technical assistance to a toxics user shall be kept confidential and not considered to be a public record pursuant to section 10 of chapter 66, unless: (i) the toxics user agrees in writing that such information may be made available to the department; or (ii) the office determines at its discretion, the information pertains to an imminent threat to public health or safety, or to the environment; or (iii) disclosure to the department is required by law. I request that the Office reconsider its judgement that the information does not “pertain to an imminent threat to public health or safety, or to the environment.” Cooperstown Environmental is actively executing an Immediate Response Action plan at the Site (400 O'Neil Blvd., Attleboro MA, the former site of the Robbins Company) in relation to two RTNs tracking discharge of several contaminants (chlorinated volatile organic compounds and dissolved Nickel) into proximal sensitive surface water bodies. This should be considered a threat to the environment and thus qualify the records in question as public records. The Office’s March 10th and March 13th Responses In its March 10, 2026 response, the Office cites G. L. c. 21I, § 7(H), as it operates through Exemption (a) of the Public Records Law for withholding responsive records. In its March 13, 2026 response, the Office elaborates on its claims for withholding the records.

Katrina Chicojay Moore, Esq. SPR26/1038 Page 3 April 6, 2026 Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its responses, the Office cites G. L. c. 21I, § 7(H), which provides as follows: Any information or record, in document or electronic format, received by the office [of technical assistance and technology within the executive office of environmental affairs] in the course of providing technical assistance to a toxics user shall be kept confidential and not considered to be a public record pursuant to section 10 of chapter 66, unless: (i) the toxics user agrees in writing that such information may be made available to the department; or (ii) the office determines at its discretion, the information pertains to an imminent threat to public health or safety, or to the environment; or (iii) disclosure to the department is required by law. G. L. c. 21I, § 7(H). In its March 10th response, the Office states the following: You requested “archived files relating to [a 1996 case study by the Office of Technical Assistance and Technology] (site plans, system specs, photos, etc.) that are publicly accessible.”

Katrina Chicojay Moore, Esq. SPR26/1038 Page 4 April 6, 2026 Any responsive records held by the Office of Technical Assistance and Technology fall within an exception to the scope of what is considered a “public record” for the following reasons: • M.G.L. c. 7, § 4, cl. 26(a) applies to records that are “specifically or by necessary implication exempted from disclosure by statute.” Under M.G.L. c. 21I, § 7(H), “[a]ny information or record, in document or electronic format, received by [the Office of Technical Assistance and Technology] in the course of providing technical assistance to a toxics user shall be kept confidential and not considered to be a public record pursuant to section 10 of chapter 66, unless: (i) the toxics user agrees in writing that such information may be made available to the department; or (ii) the office determines at its discretion, the information pertains to an imminent threat to public health or safety, or to the environment; or (iii) disclosure to the department is required by law.” This exception applies to any records which may be responsive to your request. Accordingly, these materials are not public records under Massachusetts law and not available to members of the public. In its March 13, 2026 response, the Office further clarifies the following: The Office of Technical Assistance and Technology has determined that the requested information does not pertain to an imminent threat to public health or safety, or the environment. Therefore, the information is not a public record, as indicated in our response letter dated March 10, 2026. Based on the Office’s responses, it is unclear how the withheld records constitute the type of records contemplated under G. L. c. 21I, § 7(H). In particular, it is unclear how the withheld records were received “in the course of providing technical assistance to a toxics user,” as required by the statute. The Office must clarify this. Additionally, it is unclear from the Office’s response, which specific records the Office intends to withhold. The Office must identify the records, categories of records, or portions of records it intends to withhold under Exemption (a) and G. L. c. 21I, § 7(H). See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the Office is ordered to provide Mr. Rands 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. Mr.

Katrina Chicojay Moore, Esq. SPR26/1038 Page 5 April 6, 2026 Rands may further appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Simon Rands