Jerry Halberstadt v. Massachusetts Municipal Wholesale Electrical Company (SPR 20212114)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 3, 2021 SPR21/2114 Kate Roy Records Access Officer Massachusetts Municipal Wholesale Electrical Company 327 Moody Street Ludlow, MA 01056 Dear Ms. Roy: I have received the petition of Jerry Halberstadt, of Clean Power Coalition, appealing the response of the Massachusetts Municipal Wholesale Electrical Company (Company/MMWEC) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 3, 2021, Mr. Halberstadt submitted two requests for the following records: [1] Engineering, Procurement, Construction (EPC) contract(s) for the 2015A power project; [2] Levelized cost analysis of the 55MW peaker plant compared to the levelized cost analysis using battery storage (or other analysis showing lifetime total costs/ income; at the MMWEC public forum in Peabody[.] . . . Please specify the period of time chosen for the term of the analysis; and [3] Cash flow analysis of the 55MW peaker plant. The Company provided a response on August 13, 2021, including records responsive to Items 2 and 3, but denying access to records responsive to Item 1, pursuant to Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Unsatisfied with the Company’s response, Mr. Halberstadt petitioned this office and this appeal, SPR21/2114, 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 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

Kate Roy SPR21/2114 Page 2 September 3, 2021 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. The Company’s August 13th response In its August 13, 2021 response, the Company states that its “. . . enabling act (St.1975, c. 775) provides that MMWEC is not ‘obligated to disclose trade secrets or commercial or financial information if the corporation determines that such disclosure would adversely affect its ability to conduct business in relation to other suppliers of electric power and energy.’ (St.1975, c. 775, §19(a)). MMWEC considers the EPC contract for Project 2015A to be a trade secret and commercial and financial information, the disclosure which would adversely affect MMWEC’s ability to conduct its business in relation to other suppliers of electric power and energy.” The Company explains, “[t]he EPC contract was the result of a proposal process in accordance with St. 1975, c. 775, §19(f). That process included proposals that were provided to MMWEC by third parties on a confidential basis. Among those entities providing responses on a confidential basis was the entity selected by MMWEC and with whom MMWEC negotiated the EPC contract.” The Company further indicates, “[t]he EPC contract includes commercially sensitive, proprietary, and confidential information of that third party, including, among other things, pricing and its technical work product. Because the ISO-New England markets in which MMWEC must operate are competitive, disclosure of such information would deter, if not prevent third parties from contracting with MMWEC in the future, thereby preventing MMWEC from obtaining the best possible technology at the best possible price for its members.” The Company contends, “. . . disclosure would be adverse to MMWEC’s ability to conduct its business in relation to other providers of electric power and energy. MMWEC has the statutory authority to determine whether information in its possession should be withheld from public disclosure if such disclosure would adversely affect MMWEC’s ability to conduct its business. (St. 1975, c. 775, §19(a)). MMWEC has determined that disclosure of the EPC contract would be adverse to MMWEC’s ability to compete as stated in its enabling act.” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are:

Kate Roy SPR21/2114 Page 3 September 3, 2021 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, 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. The Company’s Enabling Act, St. 1975, c. 755, § 19(a), provides in relevant part: Section eleven B of chapter thirty A and section twenty-three C of chapter thirty- nine of the General Laws, relating to meetings of public boards, and section ten of chapter sixty-six relating to the availability of public records as defined in clause twenty-sixth of section seven of chapter four of the General Laws shall apply to the corporation, provided, however, that the corporation shall not be obligated to disclose trade secrets or commercial or financial information if the corporation determines that such disclosure would adversely affect its ability to conduct business in relation to other suppliers of electric power and energy. St. 1975, c. 755, § 19(a). Although the above referenced Enabling Act indicates that the Company “. . . shall not be obligated to disclose trade secrets or commercial or financial information . . .[,]” it is unclear how it permits the Company to withhold the contract, in its entirety, from disclosure. The Company is advised that for Exemption (a) to apply, said statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Consequently, although the Company cities its Enabling Act, it remains unclear how the Enabling Act specifically or by necessary implication permits it to withhold the requested record from disclosure. Also, it is uncertain how the Company cannot redact confidential information from the responsive record and disclose non-exempt portions. See Reinstein v. Police Comm’r of

Kate Roy SPR21/2114 Page 4 September 3, 2021 Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Company must explain why segregable portions cannot be provided. As a result, I find the Company has not satisfied its burden of specificity to withhold the requested record under Exemption (a). Items 2 and 3 With respect to Items 2 and 3, in his appeal petition, Mr. Halberstadt queries “[i]n addition, would we be entitled to request additional information and clarification of the responses under [2] and [3], which we believe are not fully responsive?” In the Company’s August 13th response, it enclosed responsive records and provided links to additional responsive records. As such, it is unclear what Mr. Halberstadt is asking for. If Mr. Halberstadt believes there are additional records which were not provided, he should clarify the records he is seeking from the Company. If the records exist, the Company must provide the records in accordance with the Public Records Law or claim an exemption to withhold them from disclosure. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion Accordingly, the Company is ordered to provide Mr. Halberstadt 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 this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jerry Halberstadt