Jon Chesto v. Department of Energy Resources (SPR 20180262)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 19, 2018 SPR18/262 Rachel G. Evans Department of Energy Resources 100 Cambridge Street, Suite 1020 Boston, MA 02114 Dear Ms. Evans: I have received the petition of Jon Chesto of the Boston Globe appealing the response of the Department of Energy Resources (Department/DOER) to a request for public records. G. L. -----c-.~ 66,S!OA; see also 950 C.M.R. 32.08(1). Spec1hcally, on January 31, 2018, Mr. Chesto requested "[a ]11 correspondence with regard to Northern Pass or Eversource, from June 1, 2017, through Jan. 30, 2018. Please exclude any Google alerts and State House News items." The Department provided a response on February 22, 2018 in which it provided certain records, but withheld others pursuant to Exemptions (a), (d), and (g) of the Public Records Law and the common law attorney-client privilege. G. L. c. 4, § 7(26)(a), (d), (g). 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, § lOA(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 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, § 1O (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. 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

Rachel G. Evans SPR18/262 Page 2 March 19, 2018 The Department's February 2211 d response In its February 22nd response, the Department indicated "[w]e are continuing to review potentially responsive records, and expect to have additional non-exempt responsive records to provide from emails corresponding to 14 additional current and past employees." The Department also asserts that certain responsive records were withheld from disclosure under Exemptions (a), (d), and (g) of the Public Records Law as well as the attorney-client privilege. 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 · orney ,.,en. v. ,.,o"ector of Lynn, 377 Mass. 151, 54 (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. Under its Exemption (a) claim, the Department indicated that G. L. c. 25A, § 7 permits them to withhold these records. The statute in pertinent part reads: Powers and Duties - Price, Inventory and Product Delivery Data The department shall have the authority to collect price, inventory and product delivery data, including amounts and types of product sold, and other information which is specifically necessary and material regarding petroleum products, electricity, natural gas, and other fuels available for supply within the commonwealth from wholesalers and resellers of petroleum products, electricity, natural gas, and suppliers of other fuels, doing business in the commonwealth.

Rachel G. Evans SPR18/262 Page 3 March 19, 2018 Except as herein provided, all energy information collected by the department under this section shall be maintained for the sole and confidential use of the commonwealth, its agencies and offices. Such information shall not be deemed to be a public record as defined in clause Twenty-sixth of section seven of chapter four and shall not be subject to demand for production under section ten of chapter sixty-six; provided, however, that aggregates of such energy information may be prepared and such aggregates shall be public records; provided, further, that all energy information collected under this section may be shared with the energy offices of other states which afford such information similar protection from public disclosure. G. L. c. 25A, § 7. The Department indicates that "[t]he requested records contain information related to the specific bidders' energy cost, price, and product delivery pathways and characteristics. This type of information falls within the specific exemption from production provided in G. L. c. 25A, § 7." The Department also notes that "the 83D RFP also contains confidentiality provisions permitting bidders to request confidentiality of a bidder's financial information. The RFP was crafted pursuant to statutory provisions in the Green Communities Act, as amended by the 2016 Energy D1vers1ty Act, m consultat10n with the Attorney General's Office and ultunately approved by the DPU with respect to the timing and method of solicitation." As such, the Department asserts "the protections afforded by the RFP's confidentiality provisions represent energy information pursuant to Section 83D of the Green Communities Act, as amended, and by implication are exempt." 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; b.ut 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. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure).

Rachel G. Evans SPR18/262 Page 4 March 19, 2018 Under its Exemption ( d) claim, the Department indicates that "records related to policy positions being developed by the agency are exempt from disclosure. Pursuant to Section 83D of Chapter 169 of the Acts of2008 (the 'Green Communities Act'), as amended by Chapter 188 of the Acts of 2016, An Act to promote Energy Diversity (the 'Energy Diversity Act') the Section 83D procurement process is on-going." The Department indicates that "[t]he release of these materials could taint the deliberative process, if prematurely disclosed. Pursuant to Section 83D, any long term contracts resulting from the procurement are subject to review and approval of the Massachusetts Department of Public Utilities (DPU). Until the DPU process is complete, any associated appeal periods have ended, the procurement process remains active and records related to the deliberative process are exempt from disclosure." Exemption (g) Exemption (g) applies to: Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality; but this subparagraph shall not apply to information submitted as required by law or as a condition of receiving a governmental contract or other G. L. C. 4, §7 (26)(g). For this exemption to apply to withhold a record, a custodian must meet all of the following six (6) criteria contained in the exemption: (1) Trade secrets or commercial or financial information, (2) Voluntarily provided to a government entity, (3) For use in developing govermnent policy, ( 4) Upon an assurance of confidentiality, (5) Information provided by law, and (6) Information not submitted as a condition ofreceiving a governmental contract or benefit. The Department notes that "[t]he bids were submitted under the 83D procurement in order to expand sources of clean energy to the Commonwealth and meet its goals under the Global Warming Solution Act." The Department also contends that "[r]ecords regarding Northern Pass and other Section 83D bids were voluntarily provided to DOER as part of the 83D bid process and included commercial and financial information regarding energy generation and transmission projects not yet built, upon an assurance of confidentiality, as set forth in Section 1.7.4 of the 83D Request for Proposals ('RFP'), available at https://macleanenergy.com/83d/83d-documents/, and therefore meet the criteria cited above."

Rachel G. Evans SPR18/262 Page 5 March 19, 2018 Burden ofs pecificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (b )(iv) (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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Depaiiment did not identify any records, categories of records or portions of records 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, § lO(b)(iv); 950 CMR 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying the records. Therefore, the Department must identify the type ofrecord(s) it has in its possession that it withheld and explain which specific records fall within each of the exemptions claimed by the Department. While it appears that requested records may potentially fall under G. L. c. 25A, § 7, as it operates through Exemption (a), the statute also indicates that" ... aggregates of such energy information may be prepared and such aggregates shall be pubhc records ... " Consequently, 1t 1s unclear if the Department has prepared the aggregates of such energy information or could prepare such aggregates in response to this public records request. Also, the Department indicated that "the 83D procurement process is on-going." However, based on the Department's response, it is unclear the nature of the deliberation that is ongoing or how releasing the records would taint the deliberative process. The Department is advised that Exemption (d) "is limited to recommendations on legal and policy matters." It should also be noted that in his appeal petition, Mr. Chesto indicates "we argue that the deliberative process ended when Northern Pass was chosen and that these documents should be a matter of public record." Based on the Department's response, it is unclear the policy positions that are being developed by the Department. It should also be reiterated that any information contained in these records that is factual in nature is subject to disclosure as Exemption ( d) does not apply to such information. Further, although the Department claims the records "were voluntarily provided to DOER as part of the 83D bid process and included commercial and financial information regarding energy generation and transmission projects not yet built ... ," it is unclear whether any of the responsive records have been provided as a "condition of receiving a governmental contract or benefit." Therefore, I find the Department has not established the six criteria to establish applicability of Exemption (g) to the requested records. The Department has also not met its burden of explaining why the requested records cannot be redacted under the exemptions in the Public Records Law, and the balance of the

Rachel G. Evans SPR18/262 Page 6 March 19, 2018 record provided to Mr. Chesto. See G. L. c. 66, § 1O (a); see also Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979) (statutory exemptions are not blanket in nature). Common law attorney-client privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client's search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609,619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk, 449 Mass. at 460. Under its attorney-client privilege claim, the Department indicates that "communications between legal counsel and DOER staff related to legal advice and assistance as a part of the procurement/DPU process are exempt from disclosure." The Department also provides infonnation about the withheld emails. Howe vet, it is ur1cleat whether the privilege has been waived. See Comm'r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009) (concluding that disclosing attorney-client communications to a third party generally undermines the privilege). Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege, the Supervisor of Records "shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed." G. L. c. 66, § lOA(a). Conclusion Accordingly, the Department is ordered to provide Mr. Chesto with a response to the 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 this response to this office at pre@sec.state.ma. us. Sincerely, ~~· Rebecca S. Murray Supervisor of Records cc: Jon Chesto