Bibler, Eric v. Cape and Vineyard Electric Cooperative, Inc. (SPR 20140486)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 17, 2014 SPR14/486 Mr. John C. Checklick President Cape and Vineyard Electric Cooperative c/o Superior Courthouse P.O. Box 427 Barnstable, MA 02630 Dear Mr. Checklick: I have received a petition from Eric Bibler appealing the response of the Cape and Vineyard Electric Cooperative (CVEC) to his request for public records. See G. L. c. 66, § 10(b); see also 950 C.M.R. 32.08(2) (explaining appeals process). Specifically, Mr. Bibler requested copies of: 1. The administrative agreement between CVEC and Barnstable County, and 2. The CVEC Strategic Plan. Request #1 Mr. Bibler was provided with access to the administrative agreement between CVEC and Barnstable County, as this record is available on the CVEC website on the "About CVEC" webpage. Accordingly, this portion of Mr. Bibler's appeal is closed. Request #2 CVEC is withholding the Strategic Plan in its entirety, pursuant to Exemption (s) of the Public Records Law. It should be noted that Mr. Bibler previously requested the Strategic Plan on September 19, 2013 and March 10,2014, and that CVEC continues to withhold this records without proper justification. I find that CVEC has not met its burden under the Public Records Law of proving that the Strategic Plan may be withheld pursuant to Exemption (s) in its entirety. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. John C. Checklick SPR14/486 Page Two October 17, 2014 "The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10 ( c); 950 C.M.R. 32.08(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 town 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 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Exemption (s) Exemption (s) applies to allow a custodian to withhold: trade secrets or confidential, competitively-sensitive or other proprietary information provided in the course of activities conducted by a governmental body as an energy supplier under a license granted by the department of public utilities pursuant to section 1F of chapter 164, in the course of activities conducted as a municipal aggregator under section 134 of said chapter 164 or in the course of activities conducted by a cooperative consisting of governmental entities organized pursuant to section 13 6 of said chapter 164, when such governmental body, municipal aggregator or cooperative determines that such disclosure will adversely affect its ability to conduct business in relation to other entities making, selling or distributing electric power and energy; provided, however, that this sub-clause shall not exempt a public entity from disclosure required of a private entity so licensed G. L. c. 4, §7 (26) (s) I find that CVEC has failed to meet its burden under the Public Records Law of proving that Exemption (s) applies to withhold the Strategic Plan in its entirety. CVEC's August 5, 2014 email response to Mr. Bibler merely recited the language of the exemption. The response fails to offer more specificity on how release of the Strategic Plan would adversely affect its ability to conduct business in relation to other entities making, selling or distributing electric power and energy. While there may be information in the Strategic Plan that could satisfy the requirements of Exemption (s), CVEC has not proven that it does contain such information, and that the record cannot be redacted and the balance of the record released to the public.

Mr. John C. Checklick SPR14/486 Page Three October 17, 2014 Accordingly, CVEC is hereby ordered to provide Mr. Bibler with a copy of the Strategic Plan within ten (1 0) calendar days. This administrative appeal is closed. In the event a request for reconsideration is honored by this office an acknowledgment will be provided to all parties, followed by a written determination by this office, to be provided within fifteen (15) business days. Requests for reconsideration fi edmore than thirty (30) days after the date of this letter will not be considered. cc: Mr. Eric Bibler