Allison Jarmanning v. Department of Energy Resources (SPR 20180403)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 10, 2018 SPR18/403 Rachel G. Evans Department of Energy Resources 100 Cambridge Street, Suite 1020 Boston, MA 02114 Dear Ms. Evans: I have received the petition of Allison Jarmanning appealing the response of the Department of Energy Resources (Department/DOER) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on January 31, 2018, Ms. Jarmanning requested "copies of any bids received, score sheets or other kinds of bid evaluations, and any other analysis involved in the selection of the Northern Pass Project for the long term contracts for Clean Energy projects, also referred to as the Mass. Clean Energy RFP under section 83(d)." Previous appeal This request was the subject of a previous appeal. See SPRl 8/205 Determination of the Supervisor of Records (March 1, 2018). I closed SPR18/205 by ordering the Department to provide Ms. Jarmanning with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations within ten business days. Following the March 1st determination, the Department provided a response dated March 19, 2018, in which it continues to claim Exemptions (a), (d), and (g) of the Public Records Law and the common law attorney-client privilege to withhold responsive records from disclosure. G. L. c. 4, § 7(26)(a), (d), (g). Unsatisfied with the Department's response, Ms. Jarmanning petitioned this office and this appeal, SPRl 8/403, 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, § 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). 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 SPR18/403 Page2 April 10, 2018 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, § lO(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, § lO(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 19th response In its March 19, 2018 response, the Department indicates that "DOER is the Massachusetts executive agency responsible for establishing and implementing the Commonwealth's energy policies and programs," as established under G. L. c. 25A, § 6. The Department indicates that the requested records "were received or created by DOER, pursuant to an energy procurement required by the Energy Diversity Act, Chapter 18 8 of the Acts of 2016, which added section 83D, the electric distribution companies ('EDC's') must jointly and competitively solicit clean energy generation." The Department indicates that since the commencement of the request for proposals (RFP), "41 bids were submitted with redacted versions made publicly available." The Department indicates that pursuant to section 83D, the process is to be jointly evaluated by the Department and the EDCs and requires an Independent Evaluator (IE) to closely monitor the process to ensure that proposals are conducted in a fair and non-discriminatory manner. This process needs to be further approved by the Department of Public Utilities (DPU). The Department indicates that this process led to the selection of the Northern Pass Project to move forward to contract negotiations and is currently at the conditional contract negotiations stage. The New England Energy Connect 100% Hydro project (NECEC), also entered into concurrent contract negotiations with the EDCs. The Department "anticipates that public versions of executed contracts proposed for regulatory approval will be made available when submitted to DPU, currently anticipated to be by April 25, 2018." The Department indicates that the following exemptions are applicable to withhold responsive records. Exemption (a) The Department claimed it withheld responsive records pursuant to Exemption (a) of the Public Records Law. Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute

Rachel G. Evans SPR18/403 Page 3 April 10, 2018 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 Attorney Gen. v. Collector 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 indicates that "subsection (f) of 83D specifically required the IE to 'ensure that all proprietary information remains confidential."' The Department indicates that this requirement also extends to the entire evaluation team and the DOER." The Department indicates that as set out on the RFP and approved by the DPU, "portions of the bids were marked by bidders as confidential and proprietary. Similarly, the related content of score sheets, evaluation, and analysis contain the confidential bid information." The Department asserts that "if the statutory requirement that the IE ensure all proprietary information remains confidential did not extend to DOER (and the EDCs), this statutory requirement would be rendered ineffective and unenforceable." The Department indicates that section 1. 7.4 of the RFP requires it to "use commercially reasonable efforts" to treat confidential information from bidders in a confidential manner and only in connection with the RFP. The Department asserts that because the bid information was shared with the Department to facilitate its ability to perform its role, and the applicable statute requires "proprietary information to be confidential," the records fall within Exemption (a). The Department indicates that "'the bids received' fall within this exemption, and any of the 'score sheets or other kinds of bid evaluations, and any other analysis' that contain bid information, fall within this exemption as well. DOER received and created these records solely for the purpose of participating in the 83D evaluation team. Since section 83D provides statutory confidentiality for these records, they fall within the exemption ..." Additionally, the Department asserts that "the request seeks records containing electricity delivery data for supply within the Commonwealth, which are exempt from disclosure under this provision." The Department indicates that although the statute states that it may prepare aggregates of this information to be made public, it "has not prepared records that are an aggregation of data that would otherwise fall outside the exemptions cited in this letter." As such

Rachel G. Evans SPR18/403 Page4 April 10, 2018 since the Public Records Law does not require a custodian to create a record in response to a request, the requested records are protected from disclosure. Under its Exemption (a) claim, the Department contends that G. L. c. 25A, § 7 permits it 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. 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. Exemption (d ) The Department stated that it withheld responsive records pursuant to Exemption (d ) of the Public Records Law. Exemption ( d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but 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.

Rachel G. Evans SPR18/403 Page 5 April 10, 2018 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). Under its Exemption (d) claim, the Department indicates that the request "'seeks bids, score sheets or other kinds of bid evaluations, and any other analysis' including both internal DOER discussions and confidential discussions with the EDCs and/or the IE related to the RFP process (bid evaluation, and selection, and procurement protocols and methodology), which are essential and fully contain DOER's deliberations in reviewing the responses." The Department indicates that although the EDCs have moved forward with contract negotiations, "it may cease discussions or terminate their selection." The Department asserts that because the project status of the bid or bids selected to advance to contract negotiations may change, in that it may not successfully result in contracts, this may result in other bids being selected to advance to contract negotiations. As such "[a]ny interruption in the process has the potential to return to the EDCs and DOER back to the bid evaluation phase for additional evaluation of the remaining bids and bid selection." The Department posits that as part of the DPU's proceeding, the DPU will review the bid evaluation process set forth in the RFP to determine "whether the evaluation properly applied the RFP criteria in the evaluation of bids ... The DOER may also present facts, testimony and arguments to the DPU. Such engagement will require DOER to continue to develop policy positions and analyses of bid evaluation and selection process ... DOER is evaluating its role in this proceeding, and whether it will submit testimony on these issues. Therefore, the deliberative process has not concluded and the premature disclosure of these records would taint the ongoing deliberative process ... " The Department further asserts that production of the requested records "would hamper [its] ability to continue the deliberative analysis necessary to participate in the contract negotiation, ... any further bid evaluation or selection that may occur ... inhibits staffs ability to freely communicate, monitor the contract negotiations, and develop positions in the DPU proceeding, or to deliberate over future evaluations and selection of bids ... " The Department, citing Mink, indicates that "[w]hile DOER and the EDCs did perform various quantitative analyses of the bid evaluations, none of these records qualify as 'factual reports: under the meaning of [E]xemption 'd' because they contain analysis and information developed based on judgment, interpretation and understanding of bids, the RFP, DPU precedent, or other sources of guidance . . ." The Department indicates that even if it were "able to redact the records to disclose administrative or other non-substantive communications, such information would not be responsive to [Ms. Jarmanning's] request which explicitly seeks records related to DOER's 'evaluation' and 'analyses' of bids."

Rachel G. Evans SPRlS/403 Page 6 April 10, 2018 Exemption (g) The Department indicated that it withheld responsive records pursuant to Exemption (g) of the Public Records Law. 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 benefit 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 government policy, (4) Upon an assurance of confidentiality, (5) Information provided by law, and ( 6) Information not submitted as a condition of receiving a governmental contract or benefit. Under its Exemption (g) claim, the Department explains that the records "(1) were marked confidential or provided to DOER on a confidential basis, and (2) voluntarily submitted to an evaluation team, including DOER. This procurement process under section 83D is designed to expand the Commonwealth's policy of providing a larger and broader portfolio of clean energy resources to its residents .... [S]ection 83D contain several provisions outlining how (4) the Evaluation Team will maintain the confidentiality of bids. The information submitted was in response to a solicitation for long-term clean energy contracts with EDCs and (5) not required by any law." The Department asserts that "[w]hile the procurement was conducted to advance an important governmental policy, neither DOER nor the Commonwealth is the soliciting party of this procurement, as the EDCs are the entities who will ultimately contract with the winning bidder; thus, as to factor ( 6), the information provided in response to the solicitation was not submitted as a condition of receiving a government benefit." As such, Exemption (g) applies to the bids received and portions of the score sheets or other kinds of bid evaluations and other analysis that contain bid information.

Rachel G. Evans SPRIS/403 Page 7 April 10, 2018 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 the attorney-client privilege claim, the Department indicates that "[m]any of the potentially responsive records contain solicitation and provision of legal advice between DOER counsel and DOER staff (including its consultants), in the course of conducting the 83D procurement. In a few circumstances, the documents contain the solicitation and provision of legal advice between the Executive Office of Energy and Environmental Affairs ('EEA') counsel, EEA staff, and DOER counsel and DOER staff." The Department asserts that because the 83D procurement is a highly complex endeavor, "DOER attorneys are integrally involved in every step of the procurement, providing legal advice on interpretation of statutory requirements, RFP procedures, and ultimately on contract negotiation principles and the DPU process. These communications with attorneys lie at the heart of the attorney-client privilege and the purpose of the privilege to protect confidential communications with counsel conducted for the purpose of seeking and providing legal advice." Citing Suffolk, the Department indicates that the communications were "(1) sent by or received from a client (DOER staff assigned to participate in the section 83D process) for the purpose of seeking and receiving legal advice from an attorney in his or her capacity as such; (2) made in confidence; and (3) that the privilege as to these communications has not been waived." Suffolk, 449 Mass. at 450 n. 9. The Department also cites Hanover Ins., which recognized the common interest doctrine in Massachusetts, and asserts that "communications meeting these requirements between DOER and EEA are also protected by the attorney-client privilege and made in furtherance of a common interest, broadly stated, to facilitate a successful Section 83D process." Hanover Ins., 449 Mass. at 620. The Department provided a privilege log describing 142 email communications it withheld under the attorney-client privilege claim and asserts that "[w]hile some communications sent to/from or copied to DOER attorneys also involved outside parties, such as the EDCs or the IE, such communications may not have been conducted for the purpose of seeking legal advice, and, in any event, would be covered by the 'a', 'd', and/or 'g' exemptions .. ." The Department reiterates that "there is no indication that any privileged communications ... were shared with external parties, such that a waiver of the privilege would result."

Rachel G. Evans SPR18/403 Page 8 April 10, 2018 In camera inspection In order to analyze the legal basis of the Department's position, it is the finding of this office that an in camera review of an unredacted copy of a representative sample of the responsive records would facilitate a determination as to the applicability of any exemption claims made by the Department. See 950 C.M.R. 32.08(4 ). After I complete my review of the documents, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4); see also Bougas, 371 Mass. at 66 (explaining that "[o ]n doubtful questions an in camera inspection may be appropriate"). These records should, for example, demonstrate the active nature of the investigation. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198,206 (1981) ( administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. I understand a Public Records Division staff attorney contacted your office about this appeal. Order Accordingly, the Department is hereby ordered to provide this office with an unredacted copy of a representative sample of the responsive records without delay.

Rachel G. Evans SPR18/403 Page 9 April 10, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Allison Jarmanning