Laura S. Olton v. Westfield, City of - Gas and Electric Department (SPR 20230799)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 8, 2023 SPR23/0799 Robin Krok Records Management Westfield Gas and Electric 100 Elm Street Westfield, MA 01085 Dear Ms. Krok: I have received the petition of Attorney Laura S. Olton, on behalf of ProAmpac, appealing the response of the Westfield Gas and Electric Light Department (Department/ WGELD) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 31, 2022, Attorney Olton requested seventeen categories of records. The Department initially responded on November 14, 2022, providing a fee estimate. On December 16, 2022, the Department provided numerous responsive records, and withheld others. Following further correspondence, the Department provided some records in redacted form, and on April 7, 2023, the Department confirmed that it did not intend to provide unredacted versions of multiple records. Unsatisfied with the Department’s response, claiming the Department may possess additional responsive records, and objecting to the fees, Attorney Olton appealed, and this case 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 agency or municipality 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(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y 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 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

Robin Krok SPR23/0799 Page 2 May 8, 2023 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. Fee Estimates - Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first 2 (two) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Current Appeal In her appeal petition, Attorney Olton first contends that she “seek[s] the unredacted material in two strings of emails,” and that “information has been redacted without a sufficient written explanation.” Second, she “believe[s] additional responsive records have not been provided.” And third, in regard to the fee, she contends that “WGELD should not be able to invoice and the requestor should not be required to pay the newly billed amount of $1,850.” The Department’s Responses In its December 16, 2023 response, the Department provides a link to 415 emails, and provides a list of others it intends to withhold. In its January 25, 2023 response, the Department provides multiple emails in redacted form. The Office cites G. L. c. 164, § 47D for making the redactions. See G. L. c. 4, § 7(26)(a); G. L. c. 164, § 47D. While this appeal was pending, the Department provided a supplemental response to this office and Attorney Olton on May 1, 2023.

Robin Krok SPR23/0799 Page 3 May 8, 2023 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 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. Under Exemption (a), the Department cites G. L. c. 164, § 47D, which provides in pertinent part as follows: A municipal lighting plant created pursuant to the provisions of this chapter or any special law shall be exempt from the public record requirements of section 10 of chapter 66 and the open meeting requirements of sections 20 and 21 of chapter 30A in those instances when necessary for protecting trade secrets, confidential, competitively sensitive or other proprietary information provided in the course of proceedings conducted pursuant to this chapter when such municipal lighting plant board 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 pursuant to this chapter. G. L. c. 164, § 47D. In its December 16th response, the Department provides a list of emails that it intends to withhold and argues the following under c. 164, § 47D: The listed emails contain one or more of the following:

Robin Krok SPR23/0799 Page 4 May 8, 2023 - Sensitive information for other WGELD customers unrelated to this dispute - Standard internal reports unrelated to this dispute - Competitive work product - Attorney client privileged information. In its January 25, 2023 response, the Department provides some of the listed emails in redacted form. In her appeal petition, Attorney Olton specifically states that she is seeking the emails labeled “ProAmpac Special Contract Proposal, and ... ProAmpac Text for Review.” Based on the Department’s response, it is unclear how the emails described in Attorney Olton’s appeal may be withheld or redacted under c. 164, § 47D. Specifically, it is unclear how the redacted information is “necessary for protecting trade secrets” or how it would otherwise constitute the type of information contemplated by c. 164, § 47D. See G. L. c. 66, § 10(b)(iv) (a 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; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must clarify these matters. Records in Existence; Possession, Custody, or Control Please note that 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). Additionally, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In its May 1st response, the Department states that it “ran queries to identify all email and documents retained electronically that were responsive to Attorney Olton’s information request.... Physical searches of [Department] paper files were also conducted.” The Department further states that it “is not aware of further responsive documentation at this time.” Where the Department has indicated that it does not possess additional records responsive to the request, I find that the second part of Attorney Olton’s appeal is resolved. The Department’s November 14th Fee Estimate and April 8th Invoice In its November 14, 2023 response, the Department provides a fee estimate for $275, and in an invoice dated April 8, 2023, the Department indicates a total of $1,850 in fees.

Robin Krok SPR23/0799 Page 5 May 8, 2023 The Department is advised that, as noted above, 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. See 900 C.M.R. 32.07(2)(n) (custodian may deny access to records for requestor who previously failed to pay fees). In this case, the Department has already provided Attorney Olton with records. Accordingly, where the Department has provided records, I find it is unnecessary to opine on the third part of Attorney Olton’s appeal, concerning the Department’s November 14th fee estimate and April 8th invoice for fees. Conclusion Accordingly, the Department is ordered to provide Attorney Olton with a response to her 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Laura S. Olton, Esq. Michael Hall, Esq.