Itai Vardi v. Middleborough Gas and Electric (SPR 20251970)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 21, 2025 SPR25/1970 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. Previous Appeal This request was the subject of a previous appeal. See SPR25/1395 Determination of the Supervisor of Records (June 2, 2025). In my June 2nd determination, I ordered the Department to clarify its claims for withholding responsive records pursuant to Exemptions (d) and (g) of the Public Records Law. See G. L. c. 4, § 7(26)(d), (g). Subsequently, the Department responded on June 16, and June 23, 2025. Unsatisfied with the Department’s responses, Itai Vardi petitioned this office, and this appeal, SPR25/1970, 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 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 SPR25/1970 Page 2 July 21, 2025 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, Itai Vardi argues the following: (1) MGED did not fulfill its obligations where it did not make an independent determination as to the withheld information and instead relied fully on an explanation by a non-government agency; (2) MGED has provided no support for its claim under exemption (g); (3) the confidentiality agreement was executed 14 days after my request, meaning there was no confidential information able to be redacted pursuant to section 47D at the time of my request; (4) the confidentiality provision in the draft agreement is not a final and binding provision; (5) the confidentiality provision in the draft agreement does not protect information contained in records other than that agreement; and (6) MGED has not provided reasonably segregable portions of the records where the July 2019 board vote was intended to protect primarily pricing information and the presentation is almost entirely redacted. The Department’s June 17th and June 23rd Responses In its June 17, 2025 response, the Department provided Itai Vardi with a letter from Algonquin Gas Transmission, LLC responding to the request, and in its June 23, 2025 response, provides the following records in redacted form: [R]edacted versions of (i) the draft Precedent Agreement (“PA”) between Algonquin and MGED; (ii) the email from [a named individual], dated March 19, 2025; (iii) the project presentation and accompanying email from [a named individual], dated February 21, 2025; and (iv) the email from [a named individual], dated February 18, 2025 (collectively, the redacted information in each document is referred to herein as the “Redacted Information”)[.] In the June 17th response, the Department cites G. L. c. 164, § 47D, as it operates through

Kenneth Stone SPR25/1970 Page 3 July 21, 2025 Exemption (a) of the Public Records Law, along with Exemption (g), for redacting the responsive records. See G. L. c. 4, § 7(26)(a), (g). 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). 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 response, the Department 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. In its June 16th response, under c. 164, § 47D, the Department argues the following:

Kenneth Stone SPR25/1970 Page 4 July 21, 2025 The Redacted Information is exactly the type of information that is entitled to protection under Section 47D. As the MGED General Manager, [Mr. Stone has] determined that such information is confidential energy supply information that must remain confidential in order to protect MGED’s ability to conduct business in the competitive energy industry, and that agreeing to appropriate confidentiality provisions in the Non-Disclosure Agreement between MGED and Algonquin (“NDA”) was in the best interest of MGED and its customers. As background, precedent agreements are the financial underpinning for a pipeline company’s substantial capital investment in expansions of its natural gas pipeline system. Precedent agreements include the terms and conditions under which the pipeline, subject to conditions precedent, will design, obtain permits for, and construct project facilities to provide firm natural gas transportation service required by the shipper. In other words, all of the Redacted Information in the draft PA, as well as the Redacted Information in the project slides and accompanying emails, relates to the process and terms by which Algonquin would provide MGED with natural gas transportation capacity in its pipeline. The Redacted Information includes rates, key terms, and project and construction timelines, and it reflects Algonquin’s business decisions, practices, and strategy, all of which Algonquin considers confidential. If released, the Redacted Information would seriously harm Algonquin’s ability to conduct business, and consequently, the release of the information would seriously harm MGED’s ability to do business in the future with Algonquin and other similar entities. The Redacted Information represents Algonquin’s playbook for developing natural gas pipeline projects. Algonquin crafts each PA to reflect the unique circumstances of each of its clients and their projects. The PA includes more than just pricing information; it also includes commercially sensitive information related to Algonquin’s development of projects and competition for shippers’ business. Making this information publicly available would harm Algonquin in ongoing strategic interactions with current and future customers and provide competitors with an unfair advantage. Many market participants would be interested in seeing the redacted information in the PA, as well as the information in the other documents, to learn how Algonquin protects itself from risk, how Algonquin structures its projects, and how Algonquin has managed to successfully build projects. Here, Section 3 of the draft PA discusses Algonquin’s strategy for conducting future business in open seasons; Section 4 includes information relating to the negotiated terms of the agreements, which Algonquin drafted for the specific needs of MGED. Sections 7-9 of the draft PA include terms relating to the construction of the pipeline project and Algonquin’s performance thereof. This section was drafted after a risk analysis, which considered factors specific to this project and the ongoing relationship between the parties. This information is unique to the project and contains terms that, if released, would negatively impact

Kenneth Stone SPR25/1970 Page 5 July 21, 2025 Algonquin’s future ability to negotiate contract terms. Similarly, Sections 11 through 13 cover termination scenarios that are specific to this project. Section 14 discusses Algonquin’s credit requirements for MGED. Similarly, the project presentation and requested emails contain confidential marketing material summarizing the rate, terms and conditions of service, and project strategy that are reflected in the draft PA. The entirety of the Redacted Information is confidential and is not offered to all customers and release of such information would provide competitors and future customers with unfair negotiating power. Given the sensitivity of the information, disclosure of the Redacted Information would hamper MGED’s ability to do business in the future. Future partners would be deterred from doing business with MGED if they knew the terms of their confidential communications and agreements would be subject to public disclosure. This is why MGED passed the resolution during its July 10, 2019 meeting. The fact that the draft PA is a draft, and not yet executed, does not remove the confidential information in the document from the protection of Section 47D and the July 2019 resolution. The July 2019 resolution protects information in energy- related agreements, specifically mentioning “confidential provisions.” If MGED were required to release confidential information in a draft agreement or similar information contained in other documents (such as email correspondence or slides) simply because the information is not located in an executed agreement, it would undermine the intent and purpose of the July 2019 resolution. Based on the Department’s June 16th response, where the responsive records contain competitively sensitive and proprietary information, I find the Department has explained how the redacted information constitutes the type of records contemplated under G. L. c. 164, § 47D. Consequently, I find that the Department has met its burden to redact the responsive records under G. L. c. 164, § 47D as it operates through Exemption (a) of the Public Records Law. 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 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:

Kenneth Stone SPR25/1970 Page 6 July 21, 2025 (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 June 16th response, under Exemption (g), the Department argues the following: Entirely independent of MGED’s reliance on Section 47D, the Redacted Information is exempted from disclosure under exemption (g), as the withheld information satisfies all six elements of the exemption. Therefore, MGED should continue to withhold this information. (1) Trade secrets or commercial or financial information[.] The entirety of the Redacted Information constitutes commercial information, financial information, and trade secrets. As discussed above, the Redacted Information includes rates, key terms, pricing, and project and construction timelines, and it reflects Algonquin’s business decisions, practices, and strategy. All of this information is “commercial” and most of it is “financial” in nature. The Redacted Information also qualifies as trade secrets, as it is information that, if released, would seriously harm Algonquin’s ability to conduct business, for the reasons discussed above. (2) Voluntarily provided to an agency[.] The Redacted Information was voluntarily provided by Algonquin to MGED. As you are aware, the interaction between Algonquin and MGED began when MGED approached Algonquin regarding its availability to provide natural gas transportation service. Algonquin then voluntarily chose to submit information to MGED for MGED’s consideration and potential future negotiation. Algonquin was under no obligation to send the emails, the slides, or the draft PA to MGED. (3) For use in developing government policy[.] The Redacted Information was submitted for use by MGED in developing its future energy use and procurement policies. This information relates to the volume and rate of natural gas capacity that can be transported to MGED in the future, which in turn impacts MGED’s policy assessments used to develop and assess policy questions, such as how to ensure the reliability of energy supply, how to stabilize energy prices, and how to best support other energy policies of MGED. Moreover, the more immediate question of whether MGED should enter into a PA with Algonquin is itself a policy consideration, and the Redacted Information will be used in developing that policy. (4) Upon a promise of confidentiality[.]

Kenneth Stone SPR25/1970 Page 7 July 21, 2025 The information provided by Algonquin to MGED relating to the Reliable Affordable Resilient Enhancement Project was provided under a promise of confidentiality. MGED provided verbal assurances of confidentiality to Algonquin, as evidenced by the fact that the draft PA and the slides include “confidential” markings and the draft PA includes a detailed confidentiality clause. Both parties understood that the Redacted Information would remain confidential and only be disclosed to a limited number of people within each organization. As discussed above, the parties’ NDA, executed on April 24, 2025, merely formalized the prior informal agreement, as reflected by the fact that the NDA applies to information pertaining to the Reliable Affordable Resilient Enhancement Project “whether provided before or after the execution of” the NDA. (5) Information not submitted as required by law[.] There are no laws requiring that Algonquin provide the withheld information to MGED. MGED approached Algonquin regarding its availability to provide natural gas transportation service. Algonquin then voluntarily chose to submit information to MGED for MGED’s consideration and potential future negotiation. Algonquin was not required to provide MGED with the Redacted Information but instead provided this information voluntarily in response to MGED’s inquiry. (6) Information not submitted as a condition of receiving a governmental contract or benefit[.] While Algonquin and MGED may, in the future, enter into an executed precedent agreement or a firm contract for natural gas transportation service, the withheld information at issue here was not submitted “as a condition of receiving a governmental contract or benefit.” This is not a standard government procurement in which a government agency issues a solicitation and requires interested bidders or offerors to submit a proposal or quote as a prerequisite to or condition of receiving a contract. Instead, MGED is following Algonquin’s process. MGED initiated conversations with Algonquin in connection with Algonquin’s open season for its pipeline project. As you are aware, an open season is a period in which a pipeline offers proposed capacity and requests bids from potential shippers to indicate their interest in entering into an agreement to reserve such capacity. The open season notice is posted publicly. However, Algonquin can also execute precedent agreements before the open season that qualify as prearranged binding bids. Algonquin’s submission to MGED of the Redacted Information occurred in this context. While the information (including the draft PA) was provided as a precursor to a potential contractual relationship between the parties, it was not provided “as a condition” of receiving such a contract but rather in response to

Kenneth Stone SPR25/1970 Page 8 July 21, 2025 MGED’s indication of interest through an open season process. MGED did not impose any conditions on Algonquin, nor could it, since MGED is one of many potential consumers of Algonquin’s natural gas transportation capacity. In this case, where the Department has met its burden to redact the records pursuant to G. L. c. 164, § 47D, as it operates through Exemption (a) of the Public Records law, I find it is unnecessary to address the Department’s claims under Exemption (g) of the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. If Itai Vardi 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: Itai Vardi