Macone, Paul v. Concord, Town of (SPR 20260972)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 1, 2026 SPR26/0972 Nathanial Smith Municipal Archivist Records Manager Concord Municipal Light Department 100 Front Street Concord, MA 01608 Dear Mr. Smith: I have received the petition of Paul Macone appealing the response of the Concord Municipal Light Department (Department/CMLP) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 28, 2026, Mr. Macone requested the following records: [1] A copy of the original lease agreement between the Town of Concord (and/ or Concord Municipal Light Department) and Keasarge Energy for the use of the landfill site (old dump on Walden Street). [2] A copy of the original Power Purchase Agreement (PPA) for the project. [3] Any documents that specify the exact term length (including commencement and expiration dates of the lease and power purchase agreement. The Department responded on March 12, 2026. Unsatisfied with the response, Mr. Macone petitioned this office and this appeal, SPR26/0972, 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). 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

Nathanial Smith SPR26/0972 Page 2 April 1, 2026 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, Mr. Macone states, “… I am writing to formally appeal the redactions made by the Town of Concord Municipal Light Plant (CMLP) to a Power Purchase Agreement (PPA) dated September 16, 2013, between CMLP and Kearsarge Concord LLC. The Town has withheld significant portions of this contract under the ‘Trade Secrets’ exemption (Exemption (s).” The Department’s March 12th Response In its March 12, 2026 response, the Department cites Exemption (s) of the Public Records Law in support of the redactions. Exemption (s) Exemption (s) applies to: trade secrets or confidential, competitively-sensitive or other proprietary information provided in the course of activities conducted by a governmental body as an energy supplier under a license granted by the department of public utilities pursuant to section 1F of chapter 164, in the course of activities conducted as a municipal aggregator under section 134 of said chapter 164 or in the course of activities conducted by a cooperative consisting of governmental entities organized pursuant to section 136 of said chapter 164, when such governmental body, municipal aggregator or cooperative 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; provided, however, that this subclause shall not exempt a public entity from disclosure required of a private entity so licensed. G. L. c. 4, § 7(26)(s). In its response, the Department states, “… the PPA is redacted in accordance with Exemption S (Trade Secrets Energy Supplier) to the Public Records Law.”

Nathanial Smith SPR26/0972 Page 3 April 1, 2026 In Camera Inspection In order to facilitate a determination as to the applicability of the Department’s claims to redact the records pursuant to Exemption (s) of the Public Records Law, the Department must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the records, I will return the records to your custody and issue an opinion on the public or exempt nature of the records. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Paul Macone