Itai Vardi v. Middleborough Gas and Electric (SPR 20251395)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 2, 2025 SPR25/1395 Kenneth Stone General Manager Middleborough Gas & Electric Department 32 South Main Street Middleborough, MA 02346 Dear Mr. Stone: I have received the petition of Itai Vardi appealing the response of the Middleborough Gas & Electric Department (Department/MGED) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 10, 2025, Itai Vardi requested the following: From 9.1.2024 to the date of processing of this request, any and all emails to and from (including CCs and BCCs) Middleborough Gas and Electric Department’s General Manager . . . and the email domain @enbridge.com[.] Please include all attachments, as well as the entire threads in which responsive emails may be nestled within. The Department responded on April 24, 2025 and May 1, 2025. Unsatisfied with the Department’s responses, Itai Vardi petitioned this office, and this appeal, SPR25/1395, 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. 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

Kenneth Stone SPR25/1395 Page 2 June 2, 2025 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 the appeal petition, Itai Vardi contends the following: MGED (1) improperly withheld documents pursuant to a confidentiality agreement that was not executed until 14 days after my request; (2) failed to provide reasonably segregable portions of these documents; and (3) improperly claimed deliberative process privilege for a document shared with an Algonquin Gas Transmission, LLC/Enbridge employee. The Department’s April 24th and May 1st Responses In its April 24, 2025 response, the Department provides “68 publicly available records,” and in its May 1, 2025 response, the Department cites Exemptions (d) and (g) of the Public Records Law for withholding records. See G. L. c. 4, § 7(26)(d), (g). The Department further states the following: [W]e have identified the following documents pertaining to the Reliable Affordable Resilient Enhancement (“RARE”) project that are exempt from disclosure under the Massachusetts Public Records Law: • Draft Precedent Agreement and accompanying email from Blair Hastey, dated March 19, 2025; • Updated project slides and accompanying email from Blair Hastey, dated February 21, 2025;and • Email from Michael Dirrane, dated February 18, 2025. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d).

Kenneth Stone SPR25/1395 Page 3 June 2, 2025 Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). In its May 1st response, the Department argues that “the draft Precedent Agreement also may be withheld under the deliberative process exemption, G.L. c. 4, § 7 (cl. Twenty-sixth)(d), which allows public entities to withhold certain documents in draft form while deliberations are ongoing.” Based on the Department’s response, I find it is unclear what deliberative process the responsive record relates to, or how such a process remains “ongoing and incomplete” as required by Exemption (d). See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). Also, it is uncertain how disclosure of the record would taint any ongoing deliberative process. Additionally, I find the Department has not established how the record at issue constitutes “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Prot. Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); City of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5). The Department must clarify these matters. Further, any information contained in the responsive record that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Exemption (g) Exemption (g) applies to: Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality; but this subparagraph shall not apply to information submitted as required by law or as a condition of receiving a governmental contract or other benefit

Kenneth Stone SPR25/1395 Page 4 June 2, 2025 G. L. c. 4, § 7(26)(g). For this exemption to apply in order to withhold a record, a custodian must meet all of the following six (6) criteria contained in the exemption: (1) Trade secrets or commercial or financial information, (2) Voluntarily provided to a government entity, (3) For use in developing government policy, (4) Upon an assurance of confidentiality, (5) Information not submitted as required by law, and (6) Information not submitted as a condition of receiving a governmental contract or benefit. In its May 1st response, under Exemption (g), the Department argues the following: These records contain confidential, competitively sensitive information, which were provided upon a promise of confidentiality and are subject to confidentiality obligations pursuant to a Mutual Confidentiality Agreement between MGED and Algonquin Gas Transmission, LLC/Enbridge. Accordingly, MGED will be withholding these records. Pursuant to G.L. c. 4, § 7 (cl. Twenty-sixth), paragraph (g), MGED may withhold records containing trade secrets or commercial or financial information under paragraph (g). Moreover, as a municipal light plant, MGED may withhold documents containing confidential and/or competitively sensitive information if the MGED Board determines that such disclosure will adversely affect MGED’s ability to conduct business. Specifically, G.L. c. 164, § 47D, applicable to MGED, states: 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” (emphasis added). [sic] At its July 10, 2019 meeting, the MGED Board voted to exempt from disclosure under this clause confidential energy supply information, natural gas supply agreements and other competitive energy market products, subject to confidentiality obligations. The Board vote also acknowledges that the General Manager has authority to negotiate confidentiality provisions and non-disclosure agreements, as deemed to be in MGED’s best interests. Consistent with the

Kenneth Stone SPR25/1395 Page 5 June 2, 2025 General Manager’s authority, the General Manager negotiated a Mutual Confidentiality Agreement subjecting RARE project information and other information marked as “Confidential” to legally binding confidentiality obligations. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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”). Further, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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). Based on the Department’s response, it is unclear how the withheld records would meet all six of the criteria contained in Exemption (g). The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide Itai Vardi 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 the response to this office at pre@sec.state.ma.us. Itai Vardi may further appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Itai Vardi