Michael Melone v. Department of Energy Resources (SPR 20190061)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 23, 2019 SPR19/0061 Rachel G. Evans, Esq. Deputy General Counsel/Records Access officer Department of Energy Resources 100 Cambridge, Suite 1020 Boston, MA 02114 Dear Attorney Evans: I have received the petition of Michael Melone appealing the response of the Department of Energy Resources (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on August 28, 2018, Mr. Melone requested time to inspect or obtain copies of "[t]he work product of (i) Levitan and Associates, Inc .... (ii) New England Energy Opportunities and (iii) Front Consulting LLC which was evaluated by the Evaluation Team (of which the [Department] was a member) formed to analyze the bids received in connection with the New England Clean Energy RFP ...) ."Mr.Melone mentioned that the documents include". .. without limitation, unredacted copies of all iterations of Levitan's cost benefits analysis ..." Mr. Melone later narrowed his request for "[t]he un-redacted version of Exhibit A: the cost-benefit analysis, prepared by Levitan and Associates, Inc., that was used by the Evaluation Team to analyze the New England Clean Energy RFP." The Department provided a response on October 12, 2018, denying access to the responsive records pursuant to Exemptions (a) and (g) of the Public Records Law. G. L. c. 4, § 7(26)(a), (g). Unsatisfied with the Department's response, Mr. Melone petitioned this office and this appeal, SPR19/0061, 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). 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. 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 SPR19/0061 Page2 January 23, 2019 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, § 1 O(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 October 12th response In its October 12, 2018 response, the Department indicates that "[it] 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 it received the records "in its capacity as a participant to an energy procurement required by An Act Relative To Completely Priced Electricity in the Commonwealth, chapter 209 of the Acts of 2012 ('Section 83A')." The Department explains that "[p]er Section 83A, the Massachusetts electric distribution companies ('EDCs') must jointly and competitively solicit clean energy generation .... The procurement commenced on November 12, 2015, with the issuance of a request for proposals ('Three-State RFP') seeking bids for clean energy and related transmission." The Department states that the "Three-State RFP formalized a process for evaluation of the bids, establishing that [the Department] would jointly evaluate the bids with the EDCs, and that the EDCs would select bids with [the Department's] oversight. The Department indicates that the record is a "spreadsheet work book containing analysis performed by Levitan & Associates, a consultant to the Three-State RFP process, and includes specific data, information, and analysis for all bids received. This record includes price, inventory, and product delivery data, provided to the Evaluation Team by bidders on a confidential basis, and proprietary information regarding market forecast information and bid evaluation." The Department states that redacted versions of the bids have been made publicly available. The Department further notes that, "the record sought was the subject of litigation filed by [Mr. Melone] against the Connecticut Department of Energy and Environmental Protection (DEEP) under the state public records laws. Docket #FIC 2017-0101." The Department states that "[t]he Connecticut Freedom of Information Commission found that this record was a trade secret and exempt from disclosure, pursuant to the Connecticut Freedom of Information Act. " The Department asserts that the responsive record is exempt from disclosure pursuant to Exemptions (a) and (g) of the Public Records Law.

Rachel G. Evans SPR19/0061 Page 3 January 23, 2019 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 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 its "enabling statute specifically states that [it] has the authority to 'collect price, inventory and product delivery data,' and that such energy delivery information collected pursuant to this section is not a public record. G. L. c. 25A, §7. Moreover, this statute also provides that 'all energy information collected by the department under this section shall be maintained for the sole and confidential use of the commonwealth."' The Department further states that " ... Appendix G of the Three State RFP ... states that 'bid information ... was shared with [the Department] ... to facilitate [its] ability to perform (its) role under Section 83A, including the process followed by the (EDCs),' and review 'of the merits of (contracts) proposed for approval to Massachusetts DPU."' The Department states that although the statute indicates that it may prepare aggregates of this information for public disclosure, it" ... has not prepared any aggregation of data that would otherwise fall outside the exemptions cited in this letter ..." and that the Public Records Law, does not require it to create a record in response to a request. The Department further states that". .. during the course of the [DPU] review of the contracts selected ... the EDCs sought and were granted protection from public disclosure by the DPU of similar exhibit(s) containing bid information, analysis, and evaluation, including exhibits from Levitan and Associates. The DPU has express statutory authority to protect from public disclosure 'trade secrets, confidential, competitively sensitive or other proprietary

Rachel G. Evans SPR19/0061 Page4 January 23, 2019 information provided in the course of proceedings.' G.L. c. 25, § SD." Consequently, the Department contends that" ... 'The un-redacted version of Exhibit A: the cost-benefit analysis' and information included in the record sought by the Request falls within [Exemption (a)] and the statutory authority granted to both [the Department and DPU]. And thus ... exempt from pubic disclosure." The Department's enabling statute, G. L. c. 25A, § 7, provides in pertinent part: 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 (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 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:

Rachel G. Evans SPR19/0061 Page 5 January 23, 2019 (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 asserts that" ... (1) the record contains non-public or proprietary confidential information redacted from public versions and marked confidential by the participating bidders during the Three State RFP process, or provided to [the Department] on a confidential basis, which constitutes commercial or financial information and (2) voluntarily submitted to an Evaluation Team, including [the Department], by participating bidders." The Department explains that "[t]his procurement process under Section 83A is designed to (3) implement the Commonwealth's policy of providing a larger and broader portfolio of clean energy resources to its residents. This information was submitted for [the Department] and others to use in developing such energy policy." The Department also states that the provisions in the Three State RFP outlining how the Evaluation Team, including the Department, will maintain confidentiality of bids constitute " ... ( 4) a promise of confidentiality . . . . The information submitted by bidders was developed for a solicitation for long-term clean energy contracts with EDCs and submitted entirely voluntarily by bidders and their submission of such information was (5) not required by any law." The Department posits that". .. no benefit is conferred to selected bidders by either [the Department] or the Commonwealth, as neither [the Department] nor the Commonwealth is a party to any contract(s) resulting from the solicitation; thus, as to factor ( 6), the information ... was not submitted as a condition of receiving a · government contract or benefit. ..." In camera inspection In order to facilitate a determination as to the applicability of the exemption claims made by the Department, the Department is hereby ordered to provide this office an un-redacted copy of the responsive record for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the document, 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, 3 71 Mass. at 66 ( explaining that "[o ]n doubtful questions an in camera inspection may be appropriate"). 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.

Rachel G. Evans SPR19/0061 Page 6 January 23, 2019 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. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Melone