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http://cleanpowercoalition.org/records-request
August 13, 2021
VIA E-MAIL
Jerry Halberstadt, Coordinator
Clean Power Coalition
20 Central Street #504
Peabody 01960 MA
email: Coordinator@CleanPowerCoalition.org
Ron Smoller, Breathe Clean North Shore
email: dlanors@gmail.com
Julie Smith-Galvin, Councilor, Wakefield Town Council
email: juliesmithgalvin87@gmail.com
RE: Public Records Requests
Dear Mr. Halberstadt, Mr. Smoller and Councilor Smith-Galvin:
The Massachusetts Municipal Wholesale Electric Company (“MMWEC”) has received your two e-mails dated August 3, 2021, each of which states that it is a request under the Massachusetts Public Records Law. MMWEC has referred your requests to us for responses.
Pursuant to MMWEC’s enabling act, St. 1975, c. 775, § 19 (a), MMWEC is subject to the Massachusetts Public Records Law and the exemptions set forth therein (G.L. c. 66, §10; G.L. c.4, §7) and the exemptions set forth in St.1975, c. 775, §19 (a).
In accordance with the statutes cited above, MMWEC responds to your public records requests.
Your August 3, 2021 emails request the following records:
Engineering, Procurement, Construction (EPC) contract(s) for the 2015A power project;
Levelized cost analysis of the 55MW peaker plant compared to the levelized cost analysis using battery storage (or other analysis showing lifetime total costs /income; at the MMWEC public forum in Peabody, Matthew Ide referred to such a study). Please specify the period of time chosen for the term of the analysis; and
Cash flow analysis of the 55MW peaker plant.
Jerry Halberstadt, Coordinator, Clean Power Coalition
Ron Smoller, Breathe Clean North Shore
Julie Smith-Galvin, Councilor, Wakefield Town Council
Request (A): Engineering, Procurement, Construction (EPC) contract(s) for the 2015A power project
Response to request (A): Among the exemptions set forth in the Massachusetts Public Records Law are exemptions that apply to records that are “specifically or by necessary implication exempted from disclosure by statute” (G.L. c. 4, §7(26)(a)). MMWEC’s enabling act (St.1975, c. 775) provides that MMWEC is not “obligated to disclose trade secrets or commercial or financial information if the corporation determines that such disclosure would adversely affect its ability to conduct business in relation to other suppliers of electric power and energy.” (St.1975, c. 775, §19(a)).
MMWEC considers the EPC contract for Project 2015A to be a trade secret and commercial and financial information, the disclosure which would adversely affect MMWEC’s ability to conduct its business in relation to other suppliers of electric power and energy. The EPC contract was the result of a proposal process in accordance with St. 1975, c. 775, §19(f). That process included proposals that were provided to MMWEC by third parties on a confidential basis. Among those entities providing responses on a confidential basis was the entity selected by MMWEC and with whom MMWEC negotiated the EPC contract. The EPC contract includes commercially sensitive, proprietary, and confidential information of that third party, including, among other things, pricing and its technical work product. Because the ISO-New England markets in which MMWEC must operate are competitive, disclosure of such information would deter, if not prevent third parties from contracting with MMWEC in the future, thereby preventing MMWEC from obtaining the best possible technology at the best possible price for its members. As such, disclosure would be adverse to MMWEC’s ability to conduct its business in relation to other providers of electric power and energy. MMWEC has the statutory authority to determine whether information in its possession should be withheld from public disclosure if such disclosure would adversely affect MMWEC’s ability to conduct its business. (St. 1975, c. 775, §19(a)). MMWEC has determined that disclosure of the EPC contract would be adverse to MMWEC’s ability to compete as stated in its enabling act.
Accordingly, the EPC contract is exempt from disclosure under the above-stated exemption set forth in the Massachusetts Public Records Law (G.L. c. 4, §§7(26)(a)) and MMWEC’s enabling act (St.1975, c. 775, §19 (a)). Thus, MMWEC respectfully denies your request (A).
Request (B): Levelized cost analysis of the 55MW peaker plant compared to the levelized cost analysis using battery storage (or other analysis showing lifetime total costs /income; at the MMWEC public forum in Peabody, Matthew Ide referred to such a study). Please specify the period of time chosen for the term of the analysis.
Response to Request (B): The document to which Mr. Ide referred during the June 22, 2021 public meeting held in Peabody is dated as of April 30, 2021. The cover page of that document is contained on MMWEC’s web site: https://www.project2015a.org/. The cover page is located under “UPDATED Project 2015A Frequently Asked Questions.” For your convenience, enclosed is a copy of the complete April 30, 2021 document (including the previously disclosed cover page) to which Mr. Ide referred on June 22, 2021.
Request (C): Cash flow analysis of the 55MW peaker plant.
Response to Request (C): Request (C) asks for a “[c]ash flow analysis of the 55 MW peaker plant”. Please be advised that the capacity resource in Project 2015A is a nominal 60 MW generator. MMWEC interprets the request for a “cash flow analysis” as the estimated yearly expenses to be billed to the Project Participants in accordance with the terms of the Power Sales Agreements between MMWEC and each Project Participant. The billing and collection of those amounts is the cash MMWEC receives in order to pay all of the expenses of Project 2015A. Those amounts are set forth in RE: MMWEC, DPU 21-29, Exhibit MMWEC-1, Attachment 3, (R.DeCurzio + GTrueira Testimony – Attachment 3) and Exhibit MMWEC-2, Attachment 2 (MMace Testimony – Attachment 2), which were filed with the Department of Public Utilities on 03/03/2021 and are available under Docket #21-29 on the web site of the Department of Public Utilities:
https://eeaonline.eea.state.ma.us/DPU/Fileroom/dockets/bynumber.
In accordance with 950 CMR 32.06(3), you are hereby informed of the right of administrative appeal to the Supervisor of Public Records under 950 CMR 32.08(1) and the right to seek judicial review of an unfavorable decision by the Supervisor of Public Records by commencing a civil action in the Superior Court.
Sincerely,
Nicholas J. Scobbo, Jr.
Attachment
cc: Ronald C. DeCurzio, CEO, MMWEC
Kate Roy, Director of Communications & External Affairs & Records Access Officer MMWEC
August 19, 2021
To: Attorney of the Day
Division of Public Records
Greetings,
We filed on August 3, 2021 a public records request with the Massachusetts Municipal Wholesale Electric Company (MMWEC) seeking information in connection with their plan to borrow $85 million to finance building the project 2015A peaker plant slated to be sited at the Waters River, at the Peabody/Danvers border, with the option to refinance at a later date.
Through an act of the state legislature, MMWEC became in 1976 a non-profit, public corporation and political subdivision of the Commonwealth of Massachusetts with the power to issue tax-exempt revenue bonds to finance electric generating facilities and other projects. They claim unique statutory powers as the joint action agency for Massachusetts municipal utilities.
We asked for the following three informations:
Engineering, Procurement, Construction (EPC) contract(s) for the 2015A power project
Levelized cost analysis of the 55MW peaker plant compared to the levelized cost analysis using battery storage (or other analysis showing lifetime total costs /income; at the MMWEC public forum in Peabody, Matthew Ide referred to such a study). Please specify the period of time chosen for the term of the analysis.
Cash flow analysis of the 55MW peaker plant.
Their attorney filed in a timely fashion on August 13, 2021 the attached response; for now, I wish to appeal the refusal to provide the contracts requested under A. In addition, would we be entitled to request additional information and clarification of the responses under B and C, which we believe are not fully responsive?
They denied answering A) on the contracts. This is their standard claimed objection to all requests for information, and their justification for using executive sessions whenever they have met to discuss the 2015A project.
In effect, there can be no public oversight of MMWEC actions, including the contracts entered in to by a public body and the costs are in effect guaranteed by ratepayers who can have no way to evaluate the actions of MMWEC.
Does the law actually and fully protect MMWEC from revealing the contracts, even with any actual trade secrets or names of contractors blocked out? Once a contract has been entered into by a public body, would not the alleged reasons for secrecy evaporate?
The supposed privileged information would be known by professionals working as contractors providing services, as well as by professionals who manage light plants. While a specific offer of services may be confidential, surely the range of likely offers is well known within the industry. The results of the ISO-NE forward markets are likewise known.
What remedies do we have to obtain the required information?
Thank you for your consideration.
All the best,
Jerry
Jerry Halberstadt
Julie Smith-Galvin
julie.smithgalvin87@gmail.com
Ron Smoller
dlanors@gmail.com
The Commonwealth of Massachusetts
William Francis Galvin, Secretary of the Commonwealth
Public Records Division
Rebecca S. Murray
Supervisor of Records
August 20, 2021
SPR21/2114
Mr. Jerry Halberstadt
Clean Power Coalition
20 Central Street #504
Peabody, MA 01960
Dear Mr. Halberstadt:
I have received your letter appealing the response of the Massachusetts Municipal Wholesale Electrical Company to your request for records.
I have directed a member of my staff, Manza Arthur, Esq., to review this matter. Upon completion of the review, I will advise you in writing of the disposition of this case. If in the interim you receive a satisfactory response to your request, please notify this office immediately.
Any further correspondence concerning this specific appeal should refer to the SPR case number listed under the date of this letter.
Sincerely,
Rebecca S. Murray
Supervisor of Records
cc: Ms. Kate Roy
The Commonwealth of Massachusetts
William Francis Galvin, Secretary of the Commonwealth
Public Records Division
Rebecca S. Murray
Supervisor of Records
September 3, 2021
SPR21/2114
Kate Roy
Records Access Officer
Massachusetts Municipal Wholesale Electrical Company
327 Moody Street
Ludlow, MA 01056
Dear Ms. Roy:
I have received the petition of Jerry Halberstadt, of Clean Power Coalition, appealing the response of the Massachusetts Municipal Wholesale Electrical Company (Company/MMWEC) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 3, 2021, Mr. Halberstadt submitted two requests for the following records:
Engineering, Procurement, Construction (EPC) contract(s) for the 2015A power project;
Levelized cost analysis of the 55MW peaker plant compared to the levelized cost analysis using battery storage (or other analysis showing lifetime total costs/ income; at the MMWEC public forum in Peabody[.] . . . Please specify the period of time chosen for the term of the analysis; and
Cash flow analysis of the 55MW peaker plant.
The Company provided a response on August 13, 2021, including records responsive to Items 2 and 3, but denying access to records responsive to Item 1, pursuant to Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Unsatisfied with the Company’s response, Mr. Halberstadt petitioned this office and this appeal, SPR21/2114, 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 town 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.
The Company’s August 13th response
In its August 13, 2021 response, the Company states that its “. . . enabling act (St.1975, c. 775) provides that MMWEC is not ‘obligated to disclose trade secrets or commercial or financial information if the corporation determines that such disclosure would adversely affect its ability to conduct business in relation to other suppliers of electric power and energy.’ (St.1975, c. 775, §19(a)). MMWEC considers the EPC contract for Project 2015A to be a trade secret and commercial and financial information, the disclosure which would adversely affect MMWEC’s ability to conduct its business in relation to other suppliers of electric power and energy.” The Company explains, “[t]he EPC contract was the result of a proposal process in accordance with St. 1975, c. 775, §19(f). That process included proposals that were provided to MMWEC by third parties on a confidential basis. Among those entities providing responses on a confidential basis was the entity selected by MMWEC and with whom MMWEC negotiated the EPC contract.”
The Company further indicates, “[t]he EPC contract includes commercially sensitive, proprietary, and confidential information of that third party, including, among other things, pricing and its technical work product. Because the ISO-New England markets in which MMWEC must operate are competitive, disclosure of such information would deter, if not prevent third parties from contracting with MMWEC in the future, thereby preventing MMWEC from obtaining the best possible technology at the best possible price for its members.” The Company contends, “. . . disclosure would be adverse to MMWEC’s ability to conduct its business in relation to other providers of electric power and energy. MMWEC has the statutory authority to determine whether information in its possession should be withheld from public disclosure if such disclosure would adversely affect MMWEC’s ability to conduct its business. (St. 1975, c. 775, §19(a)). MMWEC has determined that disclosure of the EPC contract would be adverse to MMWEC’s ability to compete as stated in its enabling act.”
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, 54 (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.
The Company’s Enabling Act, St. 1975, c. 755, § 19(a), provides in relevant part:
Section eleven B of chapter thirty A and section twenty-three C of chapter thirty-nine of the General Laws, relating to meetings of public boards, and section ten of chapter sixty-six relating to the availability of public records as defined in clause twenty-sixth of section seven of chapter four of the General Laws shall apply to the corporation, provided, however, that the corporation shall not be obligated to disclose trade secrets or commercial or financial information if the corporation determines that such disclosure would adversely affect its ability to conduct business in relation to other suppliers of electric power and energy.
St. 1975, c. 755, § 19(a).
Although the above referenced Enabling Act indicates that the Company “. . . shall not be obligated to disclose trade secrets or commercial or financial information . . .[,]” it is unclear how it permits the Company to withhold the contract, in its entirety, from disclosure. The Company is advised that for Exemption (a) to apply, said statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Consequently, although the Company cities its Enabling Act, it remains unclear how the Enabling Act specifically or by necessary implication permits it to withhold the requested record from disclosure. Also, it is uncertain how the Company cannot redact confidential information from the responsive record and disclose non-exempt portions. See 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Company must explain why segregable portions cannot be provided. As a result, I find the Company has not satisfied its burden of specificity to withhold the requested record under Exemption (a).
Items 2 and 3
With respect to Items 2 and 3, in his appeal petition, Mr. Halberstadt queries “[i]n addition, would we be entitled to request additional information and clarification of the responses under [2] and [3], which we believe are not fully responsive?” In the Company’s August 13th response, it enclosed responsive records and provided links to additional responsive records. As such, it is unclear what Mr. Halberstadt is asking for. If Mr. Halberstadt believes there are additional records which were not provided, he should clarify the records he is seeking from the Company. If the records exist, the Company must provide the records in accordance with the Public Records Law or claim an exemption to withhold them from disclosure. 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).
Conclusion
Accordingly, the Company is ordered to provide Mr. Halberstadt 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 this response to this office at pre@sec.state.ma.us.
Sincerely,
Rebecca S. Murray
Supervisor of Records
cc: Jerry Halberstadt
| Subject: | Compliance Inquiry for SPR21/2114 Halberstadt/Massachusetts Municipal Wholesale Electrical Company |
|---|---|
| Date: | Thu, 16 Sep 2021 16:07:56 +0000 |
| From: | Nicholas J. Scobbo, Jr. <nscobbo@ferriterscobbo.com> |
| To: | joshua.stair@state.ma.us <joshua.stair@state.ma.us>, pre@sec.state.ma.us <pre@sec.state.ma.us> |
| CC: | SEC-DL-PREWEB@sec.state.ma.us <SEC-DL-PREWEB@sec.state.ma.us>, Kate Roy <KRoy@mmwec.org>, Coordinator@CleanPowerCoalition.org <Coordinator@CleanPowerCoalition.org>, Ron DeCurzio (RDeCurzio@mmwec.org) <RDeCurzio@mmwec.org> |
Good morning all:
The Massachusetts Municipal Wholesale Electric Company (“MMWEC”) hereby files a Request for Reconsideration in SPR21/2114 Halberstadt/MMWEC Public Records Request.
Mr. Stair, MMWEC is in receipt of your September 13, 2021 e-mail inquiry with respect to this matter. At this time, MMWEC maintains its position that the records requested which are the subject matter of the Supervisor’s determination are not public, in part for the reasons set forth in the attached Request for Reconsideration.
Please contact me with any questions.
| |||||
|
| NICHOLAS J. SCOBBO, JR., ESQ. |
125 High Street, Suite 2611, Boston, MA 02110 617.737.1800 Ext. 4501 |
September 16, 2021
VIA EMAIL ONLY
Rebecca S. Murray
Supervisor of Public Records
Office of the Secretary of the Commonwealth
Public Records Division
One Ashburton Place, Room 1719
Boston, MA 02108
email: pre@sec.state.ma.us
RE: SPR21/2114
Dear Supervisor Murray:
In response to your September 3, 2021 decision regarding the petition for appeal filed by Mr. Jerry Halberstadt of Clean Power Coalition (the “Decision”), this request for reconsideration is hereby respectfully submitted on behalf of the Massachusetts Municipal Wholesale Electric Company (“MMWEC”) in accordance with SPR Bulletin 04-17.
MMWEC takes its status as a Massachusetts political subdivision and the concurrent public records and records retention policy very seriously. Consequently, invoking the exemption contained in MMWEC’s enabling act is not taken lightly by MMWEC. However, as you know, the deregulated electric industry in which MMWEC operates is a competitive business. Importantly, MMWEC’s members, who are Massachusetts cities and towns having electric light departments rely on MMWEC in providing their ratepayers low-cost stable electric rates for their citizens.1
footnote:
1 MMWEC’s ability to assist its members is based on its ability to keep competitively sensitive information (such as the EPC contract that is the subject of Mr. Halberstadt’s request) confidential. The Massachusetts Department of Public Utilities (“DPU”) recently approved MMWEC’s request for financing authority for the capacity resource that is the subject of the EPC contract in issue here. The DPU ruled that MMWEC’s financing was reasonably necessary to accomplish the legitimate purpose of providing needed capacity for MMWEC’s members to meet obligations imposed by the Independent System Operator – New England (“ISO-NE”). MMWEC, DPU 21-29 (August 12, 2021), pp. 32-34 (accessible via docket number at: https://eeaonline.eea.state.ma.us/DPU/Fileroom/dockets/bynumber). The DPU, in making statutorily required findings of fact, found that MMWEC’s members are exposed to the price volatility of the ISO-NE open competitive markets for capacity and energy. Id. p. 17. In order to address this price volatility, MMWEC invited and received proposals containing proprietary technology, terms, technical and operating information for the construction and operating parameters of the capacity resource. This proprietary information was maintained as confidential pursuant to MMWEC’s enabling act because disclosure would adversely impact MMWEC’s ability to conduct its business for the benefit of its members in the ISO-NE open markets. The result was the EPC contract containing propriety technology, information, and terms. As
Page 2 of 5
September 16, 2021
Rebecca S. Murray
Supervisor of Public Records
balances providing a document in response to a public records request against its ability to fulfill its contractual and statutory obligations to its members. In this instance, that balance tipped in favor of MMWEC determining the release of the record is adverse to MMWEC’s ability to conduct its business in relation to other suppliers of electric power and energy. As a result and looking carefully at the Decision, MMWEC has concluded to file this request for reconsideration.
As noted in the Decision, MMWEC denied only one of three requests made Mr. Halberstadt – i.e., the request for a copy of the Engineering, Procurement and Construction (“EPC”) contract for MMWEC’s Project 2015A. MMWEC’s denial was based upon the exemption from disclosure set forth in MMWEC’s enabling act, St. 1975, c. 775, §19(a) (the “Section 19(a) Exemption”).
In relevant part, the Decision states, with respect to the application of the Section 19(a) Exemption:
.. is unclear how [the Section 19(a) Exemption] permits the Company to withhold the contract, in its entirety, from disclosure. The Company is advised that for Exemption (a) to apply, said statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Decision, p. 3.
The Section 19(a) Exemption expressly states that that MMWEC is not “obligated to disclose trade secrets or commercial or financial information if the corporation determines that such disclosure would adversely affect its ability to conduct business in relation to other suppliers of electric power and energy.” St.1975, c. 775, §19(a). Thus, MMWEC’s enabling act expressly states that, once MMWEC has determined disclosure of a record will adversely affect MMWEC’s ability to conduct its business, that record is not subject to disclosure.
The Section 19(a) Exemption was reviewed previously in SPR 87/196, which stated in relevant part:
This statute neither requires MMWEC to make an objective or irrefutable determination that disclosure would cause actual harm to its competitive relationship within the industry nor does it limit such determinations to matters concerning only direct dealings with competitors. Accordingly, your determination that the disclosure of certain financial or commercial information would adversely affect MMWEC's ability to conduct its business competitively triggers the statute's application and operates through the statutory exemption to exempt these records from mandatory disclosure. October 14, 1987 Decision of J. Igoe to N. Scobbo, p. 7 (“1987 SPR Decision”).
MMWEC members “in meeting their required capacity obligations...while providing rate stability” for their ratepayers. Id. p. 33. Moreover, the DPU found that the capacity resource “will offer needed capacity for the project participants and their ratepayers”. Ibid This would not have happened if MMWEC could not maintain the confidentiality of the EPC contract in accordance with its enabling act. In fact it clearly demonstrates the exact purpose of MMWEC’s ability to make the determination of non-disclosable trade secrets as contained in MMWEC’s enabling act.
The Section 19(a) Exemption has not been amended since the issuance of the 1987 SPR Decision, a copy of which is attached for ease of reference. The Decision is in apparent conflict with the 1987 SPR Decision.
Importantly, the cases cited in the Decision do not support a conclusion that the Section 19(a) Exemption does not apply. In Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979), the statute relied upon for exemption - G.L. c. 60, §8 - did not include express language providing exemption from disclosure. Rather, it required collectors to allow certain designated municipal officials to inspect records on demand. Collector of Lynn, 377 Mass. 151 at 154. The Collector of Lynn argued that G.L. c. 60, §8 restricted inspection of records only to those designated officials. Id. The Massachusetts Supreme Judicial Court (“SJC”) rejected this argument, finding that the right of the designated officials to inspect under G.L. c. 60, §8 complemented (rather than restricted) a citizen’s right to inspect under G.L. c. 66, §10. Id. at 155. This is in direct contrast to the Section 19(a) Exemption which expressly provides that certain information may be withheld from disclosure.
The statute involved in Ottaway Newspapers, Inc. – G.L. c. 167, §2 – stated that the records in issue, subject to certain exceptions, were limited to the confidential use by specific parties. Ottoway Newspapers, Inc. v. Court of Appeals, 372 Mass. 539, 544 (1997). However, the SJC did not hold that every statute providing for an exemption from disclosure was required to list the parties to whom disclosure was limited. Even had the SJC done so, the Section 19(a) Exemption makes clear that no party is entitled to disclosure once MMWEC determines that disclosure would adversely affect its ability to conduct business.
MMWEC made such a determination as to the EPC contract for Project 2015A. The rationale underlying MMWEC’s determination was plainly stated in its August 13, 2021 response to Mr. Halberstadt. As partially referenced in the Decision, in MMWEC’s August 13, 2021 response to Mr. Halberstadt’s request, MMWEC explained in detail the reason the Section 19(a) Exemption applied as follows:
MMWEC considers the EPC contract for Project 2015A to be a trade secret and commercial and financial information, the disclosure which would adversely affect MMWEC’s ability to conduct its business in relation to other suppliers of electric power and energy. The EPC contract was the result of a proposal process in accordance with St. 1975, c. 775, §19(f). That process included proposals that were provided to MMWEC by third parties on a confidential basis. Among those entities providing responses on a confidential basis was the entity selected by MMWEC and with whom MMWEC negotiated the EPC contract. The EPC contract includes commercially sensitive, proprietary, and confidential information of that third party, including, among other things, pricing and its technical work product. Because the ISO-New England markets in which MMWEC must operate are competitive, disclosure of such information would deter, if not prevent third parties from contracting with MMWEC in the future, thereby preventing MMWEC from obtaining the best possible technology at the best possible price for its members. As such, disclosure would be adverse to MMWEC’s ability to conduct its business in relation to other providers of electric power and energy. MMWEC has the statutory authority to determine whether information in its possession should be withheld from public disclosure if such disclosure would adversely affect MMWEC’s ability to conduct its business. (St. 1975, c. 775, §19(a)). MMWEC has determined that disclosure of the EPC contract would be adverse to MMWEC’s ability to compete as stated in its enabling act. August 13, 2021 Letter from N. Scobbo to J. Halberstadt.
To the extent the Decision requires the Section 19(a) Exemption to identify the types of records that may be withheld in a manner other than by MMWEC’s determination, the Decision, runs contrary to the express and unambiguous language of the Section 19(a) Exemption, renders such language meaningless, and appears to present a conflict between MMWEC’s enabling act and the Public Records Law.
Moreover, MMWEC’s enabling act is a special act of the Massachusetts Legislature. The clear and unambiguous terms of MMWEC’s enabling act are conclusive as to the legislative intent. Global Naps Inc. v. Awiszus, 457 Mass. 489, 496 (2010). By providing MMWEC with the power to withhold trade secrets or commercial or financial information from disclosure where MMWEC has determined that such disclosure would adversely affect its ability to conduct business, the Massachusetts Legislature clearly intended that once MMWEC made such a determination, records could be withheld. Otherwise, the express language of the Section 19(a) Exemption would be superfluous. Such an outcome would be unsustainable. See Monell v. Boston Pads, LLC, 471 Mass. 566, 576 (2015) (A basic tenet of statutory construction requires that a statute be construed to give effect to all its provisions, so that no part will be inoperative or superfluous); see also Commonwealth v. Angiulo, 415 Mass. 502, 525 (1993) (it is presumed that the Legislature did not intend “to enact a barren and ineffective provision.”)
Likewise, such an outcome would cause MMWEC’s enabling act to be at odds with the Public Records Law by making the latter impose requirements not included in the former. The Section 19(a) Exemption requires that MMWEC make a determination that disclosure adversely affects its ability to conduct business. It does not set forth a manner of identification – other than MMWEC’s determination – of the types of records that are exempt from disclosure. By requiring some additional form of identification, the Decision impermissibly adds language to MMWEC’s enabling act that the Legislature did not include. Simmons v. Clerk-Magistrate of the Boston Div. of the Housing Court Dept., 448 Mass. 57, 643 (2006); Global Naps, 457 Mass. at 496.
Thus, the Decision places MMWEC’s enabling act in apparent conflict with the Public Records Law. Instead, an endeavor should be made to read both statutes in harmony so as to honor the policies underlying both statutes. Alliance to Protect Nantucket Sound, Inc. v. EFSB, 457 Mass. 663, 673 (2010). Following the express language of the Section 19(a) Exemption allows for a harmonious reading of both statutes.
In any event, to the extent there is a conflict, MMWEC’s enabling act, which is a special act and more specific law, would control. Alliance to Protect Nantucket Sound, Inc. v. Dept. of Pub. Utils. 461 Mass. 166, 184 (2011) (If a general statute and a specific statute cannot be reconciled, the general statute must yield to the specific statute). The essence of this interpretation is noted in the 1987 SPR Decision. The Supervisor of Public Records is not permitted “to order disclosure of records if a statute mandates nondisclosure.” 1987 SPR Decision, p. 5, citing, General Chemical Corporation v. Department of Environmental Quality Engineering, 19 Mass. App. Ct. 287, 294 n. 4 (1985).
For the reasons stated above, MMWEC respectfully requests that you reconsider the Decision.
Sincerely,
Nicholas J. Scobbo, Jr.
Attachment
cc: Jerry Halberstadt, Coordinator (email: Coordinator@CleanPowerCoalition.org)
Ronald C. DeCurzio, CEO, MMWEC
Kate Roy, Director of Communications & External Affairs & Records Access Officer MMWEC
(via email only)
Q:\NJS\00918009\Public Records Requests\Clean Power Coalition - J. Halberstadt\Letters\Ltr to R Murray - request for reconsideration (final).docx
This was attached as supporting MMWECs request for reconsideration.
The Commonwealth of Massachusetts
Office of the Secretary of State
Michael Joseph Connolly, Secretary
James W. Igoe
Deputy Secretary of State
Supervisor of Public Records October 14, 1987
SPR87/196
Nicholas J. Scobbo, Jr.
Ferriter, Scobbo, Sikora, Carruso & Rodophele, P.C.
One Milk Street
Boston, MA 02109
Dear Mr. Scobbo:
Pursuant to G. L. c. 66, §10(b)(1986 ed.) and 950 C.M.R. 32.08(2), I am in receipt of a petition from Representative Geoffrey C. Beckwith. Representative Beckwith is appealing the decision of the Massachusetts Municipal Wholesale Electric Company (MMWEC) not to provide him with copies of records relating to the Seabrook Nuclear Power Plant (Seabrook). Specifically, Representative Beckwith appeals MMWEC's decision to withhold: (1) all written communications between MMWEC and its legal counsel or its consultants; (2) minutes which reflect executive session discussions and documents discussed in executive session by MMWEC's Board of Directors, its standing committees and its various ad hoc committees; and (3) any documents containing commercial information or trade secrets.
"Public record" is broadly defined to include all documentary materials or data made or received by any officer or employee of any corporation of the Commonwealth unless falling within a statutory exemption. G. L. c. 4, S7(26)(a)-(1)(1986 ed.). The statutory exemptions are strictly and narrowly construed. Attorney General v. Assistant Commissioner of the Real Property Department of Boston, 380 Mass. 623, 625 (1980); Attorney General v. Board of Assessors of Woburn, 375 Mass. 430, 432 (1978). Public records, and any non-exempt, segregable portions thereof, are subject to mandatory disclosure upon request. G. L. c. 66, §10(a)(1986 ed.); Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 289-290 (1979)(none of the statutory exemptions provide a blanket exemption from disclosure). The requested materials clearly fall within the broad
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Nicholas J. Scobbo, Jr. SPR87/196
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October 14, 1987
definition of "public record." Therefore, it is necessary to determine whether a statutory exemption provides a basis for withholding any information contained in the requested records.
The suggestion that the attorney-client privilege and work product doctrine provide an independent basis for withholding some of the requested documents has been discussed during the investigation of this appeal. Please be advised that this office consistently refuses to acknowledge that the attorney-client privilege and work product doctrine, per se, provide a basis for withholding documents which fall within the definition of "public record." See G. L. c. 4, §7(26) (1986 ed.)(definition of "public record"). The attorney client privilege is a common law evidentiary privilege. The work product doctrine is merely a civil discovery rule which erects a barrier to discovery of opposing counsel's work product. Consequently, neither is a statute which specifically or by
necessary implication exempts such materials from the mandatory disclosure provisions of the Public Records Law. See G. L. c. 4, §7 (26)(a)(1986 ed.)(exemption for materials where a statute provides a basis for withholding disclosure). Moreover, the privilege is the client's to waive. Phillips v. Chase, 201 Mass. 444, 449 (1909); see also S.J.C. Rule 3:07, Canon 4, Dr 4-101 (c)(1) and (2), as amended, 382 Mass. 778 (1981)(there is no ethical obligation on the part of the attorney to keep client confidences if the client waives the privilege). The legislature may waive the privilege on behalf of public entities. District Attorney for the Plymouth District v. Board of Selectmen of Middleborough, 395 Mass. 629, 633-634 (1985). Therefore, the Public Records Law effects a statutory waiver of the privilege except for in those records where an exemption is applicable. See id. at 634 (applying this principle in the context of the municipal Open Meeting Law); see also Attorney General v. Board of Appeals of the Town of Milton, Suffolk Superior Court, C. A. No. 46208, Memorandum of Decision (1981)(the attorney-client privilege and work product doctrine are neither express nor implied exemptions to the statutory definition of "public record").
You also express concern that the Public Records Law is being used here as a means to obtain records which were previously denied another party during discovery in a separate legal proceeding. 11owever,_there is no provision in the Public Records Law or the Rules of Civil Procedure barring the simultaneous use of both information gathering systems. Roblin Industries v. Worcester Redevelopment Authorily, Worcester Superior Ct., C. A. ACO96CV (June 30, 1977); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976)(status as a litigant neither adds to nor detracts from an individual's access rights under the Public Records Law); Pottle v. School Committee of Braintree, 395 Mass. 861, 866 n.6 (1985)(the Public Records Law does not sanction discrimination among persons requesting access to records); Torres v. Attorney General, 391 Mass. 1, 10 (1984)(access does not depend on the merits
Nicholas J. Scobbo, Jr. SPR 87/196
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October 14, 1987
of the requester's needs); 950 C.M.R. 32.05(5) (prohibiting a custodian of records from inquiring into the requester's identity or motive in seeking access to records); see also Moore-McCormack Lines, Inc., 508 F.2d at 949-950 (Rule 26 (b) of the Federal Rules of Civil Procedure does not allow a government agency to withhold information from the public if the Freedom of Information Act requires its disclosure). Accordingly, the Public Records Law is a distinct form of access to public records which operates independently of the civil discovery process. Consequently, information which is available through the Public Records Law may, for,whatever reason (e.g, relevancy), not be obtainable through discovery.
Your memorandum suggests that the inter-agency memoranda exemption, like its cognate federal provision, encompasses those requested materials which would traditionally be covered by the attorney-client privilege and work product doctrine. See 5 U.S.C. §552(b)(5)(exemption for materials "which would not be available by law to a party other than an agency engaged in litigation with the agency"); see also N.L.R.B. v. Sears Roebuck & Company, 421 U.S. 132, 154-155 (1975)(the cognate federal exemption applies to privileged materials and attorney work product). Textual differences, however, distinguish the Massachusetts exemption from its federal counterpart. See Globe Newspaper Company v. Boston Retirement Board, 388 Mass. 427, 438 (1983)(where state statutory language differs in material respects from a previously enacted federal statute, a rejection or expansion of the principles embodied in the federal statute may be inferred). The Massachusetts exemption allows the withholding of:
Inter-agency or intra-agency memoranda or
letters relating to policy positions being developed by the agency; but this subparagraph 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)(1986 ed.).
This exemption provides a limited executive privilege for records related to the development of government policy. As with the federal provision, the exemption only applies to records containing recommendations and opinions on matters discussed during the deliberative process. See Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975) (construing the cognate provision of the Federal Freedom of Information Act); see also Environmental Agency v. Mink, 410 U. S. 73, 89 (1973). Essentially, the exemption is intended to provide a setting where policy makers can freely engage in candid discussions. Mink, 410 U.S. at 89; Vaughn, 523 F.2d at 1144.
Nicholas J. Scobbo, Jr. SPR 87/196
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October 14, 1987
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