Paul Macone v. Energy New England (SPR 20251239)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 16, 2025 SPR25/1239 John Tzimorangas President and CEO Energy New England 5 Hampshire Street, Suite 100 Mansfield, MA 02048 Dear Mr. Tzimorangas: I have received the petition of Paul Macone appealing the response of Energy New England (ENE) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 20, 2025, Mr. Macone requested: [1] The most recent Financial Statement of ENE. [2] W2 compensation of all Officers, Members, Directors, Board Members and any records of compensation made to any person known to be an employee in any state or local municipal government in Massachusetts. I am requesting any compensation for the above to also include Payment, Earnings, Reimbursement, Wages, Stipends, Honorarium, Incentives, Profit Sharing and Allowances. This request is for all of 2023 to 2024 to date. [3] The current operating agreement or any agreement with the Concord Municipal Light Plant located in Concord, MA. For the time period of 2023 and 2024 to date. In his previous appeal to this office on April 12, 2025, Mr. Macone clarified his request: Records and or Documents that would show what Energy New England (ENE) has paid, monetarily, to David Wood and Jason Bulger (Past and Present employees of the Concord Municipal Light Plant, which is not organized under c164s47c) for their duration being on the Board of Directors at ENE. This is not a change in my request, it is included in my original request. Previous Appeals This request was the subject of previous appeals. See SPR25/0768 Determination of the 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

John Tzimorangas SPR25/1239 Page 2 May 16, 2025 Supervisor of Records (March 27, 2025) and SPR25/1022 Determination of the Supervisor of Records (April 23, 2025). In my April 23rd determination, I closed SPR25/1022 in light of ENE providing a supplemental response on April 17, 2025. Unsatisfied with ENE’s response, Mr. Macone petitioned this office and this appeal, SPR25/1239, 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 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. ENE’s April 17th response In its April 17, 2025 response, ENE states: Energy New England LLC (ENE) has not paid [two identified individuals] any compensation for their position as directors on the Board of Directors of ENE, past or present. Therefore, there are no records or documents to produce. Current Appeal In his appeal to this office, Mr. Macone states: I fail to see how just responding with no records is considered being responsive and the case being closed…. The limited financial records regarding two members of the Board of Directors … I requested fall well outside of this exemption as stated.… The limited records I have requested are not subject to exemptions and the repeated excuse that ENE doesn’t pay Jason Bulger or David Wood ‘compensation’ is irrelevant. I am not requesting records regarding compensation from ENE. What I requested is in the body of my request and is clearly stated in my prior appeal.

John Tzimorangas SPR25/1239 Page 3 May 16, 2025 On April 27, 2025 I made a Public Record Request to the Massachusetts Municipal Wholesale Electric Company (MMWEC) … MMWEC is another ‘Cooperative’ formed under c164s47c and is identical to ENE in it’s legal responsibilities including complying with the Public Records Law by statute. Please note: On May 2, 2025 I received a reply to my PRR from MMWEC … My request to MMWEC was for records exactly as requested from ENE. As I indicated in my request to MMWEC, I was aware that MMWEC does not pay any compensation to it’s Board Members as clearly stated on their website. I didn’t ask MMWEC what compensation it pays to it’s Board Members. I am not asking ENE what compensation it pays to it’s Board Members[.] It’s clear that MMWEC understood that what I was asking for were records subject to production under the related regulatory statutes as they produced the records I requested. MMWEC did not deny any records that I requested. They provided the records. The attachment I provide is self-explanatory. I made a request, MMWEC was obligated to provide the records and they did. This is exactly what ENE should be required to do. After two appeals, it seems clear that ENE simply doesn’t want to provide the records I requested and those requested records are public records….. Records in Existence ENE is advised 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). Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, 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 light of the clarification provided by Mr. Macone in his appeal petition, I find ENE must clarify whether it possesses records responsive to the request. If ENE does possess responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. 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”). Conclusion Accordingly, ENE is ordered to provide Mr. Macone with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations

John Tzimorangas SPR25/1239 Page 4 May 16, 2025 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: Paul Macone Walter Foskett