Andy Richter v. Department of Public Utilities (SPR 20251594)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 23, 2025 SPR25/1594 Mathieu Cunha, Esq. Department of Public Utilities Legal Division One South Station, 5th Floor Boston, MA 02110 Dear Attorney Cunha: I have received the petition of James Richter appealing the response of the Department of Public Utilities (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 19, 2025, Mr. Richter requested, “information related to the regulation of National Grid public utility rates 2024-2025 [for] the following documents: [1] Memorandum of information provided to the legislature to provide to constituents [2] Guidance provided to the legislature for the same time period provides for legal claims to be made against national grid for unlawful billing practices. [3] Documents that quantity, memorialize or describe the quantity of successful complaints filed against national grid for unlawful billing[.] Previous Appeal This request was the subject of a previous appeal. See SPR25/1527 Determination of the Supervisor of Records (June 2, 2025). In my June 2nd determination, I learned that the Department provided a supplemental response to Mr. Richter on June 5, 2025. Unsatisfied with the Department’s response, Mr. Richter petitioned this office and this appeal, SPR25/1594, was opened as a result. Subsequent to the opening of this appeal, the Department provided a supplemental response to Mr. Richter and this office on June 20, 2025. 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 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

Mathieu Cunha, Esq. SPR25/1594 Page 2 June 23, 2025 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 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. Richter states: Free access to public records are critical for citizens to supervise their government, root out corruption, and ensure that policies, procedures, regulations, and statutes are dutifully followed by public servants. If the department of public utilities had been properly regulating National Grid, my appeal of my gas bill would not have been successful. The public has a right to understand how ineffective truly is DPU…. Knowing that your neighbor is mad at national grid because they are improperly billing us is not an intimate detail. Filing a complaint about a utility company disputing your bill is not nearly precise enough nor is it likely to cause someone of normal sensitivities embarrassment should it be disclosed…. The Department’s June 5th and June 20th Responses In its June 5, 2025 response, the Department provided responsive records in redacted form, citing Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). In its June 20, 2025 response, the Department states it has redacted “the names and physical addresses of complainants” under Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an

Mathieu Cunha, Esq. SPR25/1594 Page 3 June 23, 2025 unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. In its June 5th response, under Exemption (c), the Department argues the following: The Department conducted a search, segregated the appropriate records, and redacted certain records pursuant to G.L. c. 4, § 7(26)(c), specifically the names, email addresses, mailing addresses, phone numbers and utility account numbers of private citizens. It sent these records to Mr. Richter, along with a response letter, on May 29, 2025…. Cell phone numbers and addresses of citizens are well established as falling within this exemption. ‘Any public interest in the disclosure of cell phone numbers and personal email addresses of citizens likely does not outweigh the privacy interest because this information would not shed light on whether government officials are carrying out their duties in a law abiding and efficient manner.’ A Guide to the Massachusetts Public Records Law, Secretary of State’s Office, 19 (2022). The names and account numbers of Commonwealth citizens should be similarly protected. The Department has long shielded the identities of Commonwealth citizens who bring complaints to the Department concerning their energy bills. Issues concerning bills are sensitive, particularly as it regards the ability of a household to afford their bills. Having outstanding bill problems, complaints to their utilities, or administrative issues revealed to the wider public has the

Mathieu Cunha, Esq. SPR25/1594 Page 4 June 23, 2025 potential to embarrass the individuals involved and could have a chilling effect on the willingness of other individuals to bring their issues to the Department. Revealing utility account numbers could subject citizens to fraud. Someone’s full contact information and utility account numbers are intimate details of a highly personal nature. When reaching out to the Department, there is no assumption that these complaints, and the identifying information which ties those complaints back to them, would be made public. The information redacted protects the intimate details of the complainants economic difficulties from public disclosure while providing requester with as much information as possible. The information redacted is not available through any other source, and there is a limited public interest in revealing account numbers. This interest does not balance against the possibility for abuse and embarrassment potentially suffered by complainants. The redaction of names, addresses, account numbers, email addresses and phone numbers is routine and appropriate. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. As a matter of course, witness provided information is essential to efficient and effective Law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas, 371 Mass. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438

Mathieu Cunha, Esq. SPR25/1594 Page 5 June 23, 2025 (1983). The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. In its June 20th response, the Department argues the following under Exemption (f): This exemption may be used to protect the identities of voluntary witnesses to an investigation, serving to protect their anonymity. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001). This can last past the investigation itself. Reinstein v. Police Commr of Boston, 378 Mass. 281 , 290 n.18 (1979). The Department evokes this exemption to protect the identities of Commonwealth citizens who sought Department support. This is particularly relevant, because the requester demands “to know who else this has happened to so we may look at how national grid may be improperly billing citizens.” [emphasis added]. In other words, the requester has implied that he intends to contact these individuals in order to include them in activities which they have not requested or sought. This could have a chilling effect on the willingness of others to come to the Department for support. The Department previously stated that billing matters can be personal. There is a strong possibility that citizens will not come to the Department for help if they believe their personal information will be freely obtained after they do so. This applies not only to consumer complaints, but to all facets of the Department’s investigatory responsibilities. The Department’s

Mathieu Cunha, Esq. SPR25/1594 Page 6 June 23, 2025 investigations could be severely hampered if witnesses relaying sensitive information believe that their identities could be revealed by anyone submitting a public records request. Based on the Department’s June 20th response, where the names and physical addresses have been redacted to protect the identities of utility customers filing complaints, the release of which may cause a chilling effect on all future complaints, I find the Department may properly redact such information pursuant to Exemption (f) of the Public Records Law. Where the Department has met its burden to redact the records under Exemption (f), I find it unnecessary to address the Department’s claims under Exemption (c) of the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Richter 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: James Richter