Jonathan Gerhardson v. Chicopee Electric Light (SPR 20242054)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 1, 2024 SPR24/2054 Natalie Colberg Records Access Officer City of Chicopee Electric Light Department 725 Front Street Chicopee, MA 01020 Dear Ms. Colberg: I have received the petition of Jonathan Gerhardson appealing the response of the City of Chicopee Electric Light Department (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 13, 2024, Mr. Gerhardson requested the following: [R]ecords going back one year from July 13, 2024: [1.] Reports, records and logs created by CELD/Crossroads Fiber, or any of its contractors or agents made in the course of monitoring its Services or Network electronically for purposes of determining whether its facilities, Services or Network are operating satisfactorily. [2.] Any invoices paid to CELD/Crossroads Fiber excluding bills for residential internet service. The City responded on July 17, 2024, stating that it does not possess records responsive to Item 1 of the request, and that it is withholding records responsive to Item 2 pursuant to G. L. c. 164, § 47D as it operates through Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). Subsequent to the opening of this appeal, on July 22, 2024, the City provided a supplemental response to this office and Mr. Gerhardson. 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 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

Natalie Colberg SPR24/2054 Page 2 August 1, 2024 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 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. Current Appeal In his appeal petition, Mr. Gerhardson contends that the City “is improperly applying the exemption to the public records law reserved for trade secrets.” In an email subsequent to the opening of this appeal, he goes on to argue “that the law specifically and given the year passed likely intentionally includes only power generating activities as exempt.” He further argues that “Crossroads Fiber does not make, sell, or distribute electricity or power,” and “that the legislature did not intend for this exemption to apply to the information [he is] seeking.” The City’s July 17th and July 22nd Responses In its July 17, 2024 response, the City states that it has no records responsive to Item 1 of the request. With regard to Item 2, the City states that “those records are being withheld pursuant to GL ch. 164 sec. 47D and a vote of the City board.” In its July 22, 2024 response, the City further elaborates on its claims for withholding the responsive records. 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Natalie Colberg SPR24/2054 Page 3 August 1, 2024 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. In its July 17th response, the City 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. Additionally, in its July 22nd response, the City cites G. L. c. 164, § 47E, which provides in pertinent part as follows: A municipal lighting plant or a cooperative public corporation and any municipal lighting plant member thereof, established pursuant to this chapter or any general or special law may construct, purchase or lease, and maintain such facilities as may be necessary for the distribution or the operation of a telecommunications system for municipal use or for the use of its customers. ... Wherever apt, the provisions of this chapter and chapter 44, which apply to the operation and maintenance of a municipal lighting plant, shall apply also to the operation and maintenance of such telecommunications system. G. L. c. 164, § 47E. In its July 17th response, under the statutes cited above, the City argues the following: The City does have billing records for its non-residential customers, but those records contain competitively sensitive information and pricing, the disclosure of which would adversely impact the City’s ability to conduct its business. Those

Natalie Colberg SPR24/2054 Page 4 August 1, 2024 records are being withheld pursuant to GL ch. 164 sec. 47D and a vote of the City board[.] In its July 22nd response, the City further argues the following: The City of Chicopee established an Electric Department over 100 years ago. Chicopee has never had a telecommunications department. There is no telecommunications business separate from the electric business. It’s the electric department that offers telecommunications service as part of electric operations. . . . Today, electric departments sell internet services to increase electric revenues. MGL ch. 164 sec. 47E. Therefore, if Comcast or a competitor of the City found out competitively sensitive pricing or other data, the competitor would be able to use that data to poach City telecommunications customers. If that happened, electric department revenues would decrease, and it would jeopardize the City’s ability to compete in the electric business. Additionally, the City explains that “Crossroads Fiber is simply a DBA name. There is no entity or company named Crossroads Fiber. All internet services are provided by, and all revenue is credited to, the City electric department.” Based on the City’s July 17th and July 22nd responses, where the responsive records contain competitively sensitive pricing data, I find the City has explained how the invoices are the type of records contemplated under G. L. c. 164, § 47D and § 47E. Consequently, I find that the City has met its burden to withhold the responsive records under G. L. c. 164, § 47D and § 47E as they operate through Exemption (a) of the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Gerhardson 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. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Jonathan Gerhardson John Ferriter, Esq.