Although the Supervisor of Public Records on reconsideration has denied our request to MMWEC for certain public records about Project 2015A, the Peabody peaker, we are planning to continue our efforts through the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit the availability of applicable judicial remedies).
NICHOLAS J. SCOBBO, JR., ESQ.
125 High Street, Suite 2611, Boston, MA nscobbo@ferriterscobbo.com
617.737.1800 Ext. 450
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
{Footote1 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 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.}
Therefore, 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 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
The Commonwealth of Massachusetts
William Francis Galvin, Secretary of the Commonwealth
Public Records Division
Rebecca S. Murray
Supervisor of Records
October 7, 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 (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.
Previous appeal
This request was the subject of a previous appeal. See SPR21/2114 Determination of the Supervisor of Records (September 3, 2021). In my September 3rd determination, I found that MMWEC had not met its burden of specificity to withhold a contract, in its entirety, from disclosure under Exemption (a). In a letter dated September 16, 2021, MMWEC requests that I reconsider my previous determination.
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.
Reconsideration request
In its September 16, 2021 letter, MMWEC states, “. . . 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. Therefore, MMWEC 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.”
MMWEC asserts that its Enabling Act, “. . . expressly states that “[it] 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.”
MMWEC reiterates that it “. . . 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.” MMWEC explains that “[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. . . . 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.”
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.
MMWEC’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).
Based on the above statute, where MMWEC has made the determination that disclosure of the EPC contract “. . . would adversely affect its ability to conduct business in relation to other suppliers of electric power and energy[,]” I find that MMWEC has met its burden to withhold the responsive records pursuant to St. 1975, c. 755, § 19(a), as it operates through Exemption (a) of the Public Records Law.
Conclusion
Accordingly, I will consider this administrative appeal closed. If Mr. Halberstadt 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) (pursuing administrative appeal does not limit availability of applicable judicial remedies).
Sincerely,
Rebecca S. Murray Supervisor of Records
cc: Jerry Halberstadt
Nicholas J. Scobbo, Jr., Esq.