Walter Hamilton v. South Hadley Electric Light Department (SPR 20232893)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 14, 2023 SPR23/2893 Sarah Gmeiner Town Clerk South Hadley Electric Light Department 85 Main Street South Hadley, MA 01075 Dear Ms. Gmeiner: I have received the petition of Walter Hamilton appealing the response of the South Hadley Electric Light Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 17, 2023, Mr. Hamilton requested “... the titles and income of each of the accounts that comprise the ‘Other’ line item in the Operating Revenues section of the annual SHELD financial reports for the years 2015 to 2022.” Prior Appeal The requested records were the subject of a prior appeal. See SPR23/2634 Determination of the Supervisor of Records (November 15, 2023). The Department responded on November 7, 2023 and November 21, 2023. Unsatisfied with the responses, Mr. Hamilton petitioned this office and this appeal, SPR23/2893, 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. 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 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

Sarah Gmeiner SPR23/2893 Page 2 December 14, 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. The Department’s November 7th and 21st Responses In its November 7, 2023 response, the Department produced requested records with redactions pursuant to Exemption (s) of the Public Records Law and also cited G. L. c. 164, § 47D in support of the redactions. In its November 21, 2023 response, the Department recited the procedural posture of the appeal. Exemption (s) Exemption (s) applies to: trade secrets or confidential, competitively-sensitive or other proprietary information provided in the course of activities conducted by a governmental body as an energy supplier under a license granted by the department of public utilities pursuant to section 1F of chapter 164, in the course of activities conducted as a municipal aggregator under section 134 of said chapter 164 or in the course of activities conducted by a cooperative consisting of governmental entities organized pursuant to section 136 of said chapter 164, when such governmental body, municipal aggregator or cooperative 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; provided, however, that this subclause shall not exempt a public entity from disclosure required of a private entity so licensed. In its response, the Department states, “... the information sought by Mr. Hamilton in his October 17, 2023, request, which was redacted in the record SHELD provided to Mr. Hamilton, relates to telecommunication revenues and other pricing, contracting and strategic information pertaining to SHELD’s efforts to obtain business/contracts with various communities. Therefore, such information should be treated as ‘confidential, trade secrets, competitively sensitive or other proprietary information’ and is not subject to disclosure.” Additionally, the Department cited G. L. c. 164, § 47D which states 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.

Sarah Gmeiner SPR23/2893 Page 3 December 14, 2023 G. L. c. 164, § 47D. Based upon the Department’s November 7th response, where “. . . trade secrets, confidential, competitively sensitive or other proprietary information” are restricted from disclosure under G. L. c. 164, § 47D, providing that “[a] municipal lighting plant . . . shall be exempt from the public record requirements of section 10 of chapter 66 . . .[,]” I find the Department has met its burden in responding to this request. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Hamilton is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Walter Hamilton