Rebate records withheld by state

Second in a series of occasional articles on rulings issued by the Secretary of State’s office concerning appeals of public records requests filed with public agencies.

The Great Appliance Exchange last year was a big hit. The Massachusetts Department of Energy Resources, working with Mass Save, an organization composed of Massachusetts gas and electric utilities, arranged for rebates ranging from $50 to $250 to Massachusetts residents who purchased certain energy-efficient models of dishwashers, refrigerators, washing machines, and freezers.

The program was so popular that reservations for it, made by phone and online, were gone within two-and-a-half hours on the very first day of the program.  As a result, many consumers who wanted to participate were shut out.

Reports also surfaced alleging that employees of DOER and its parent agency, the Executive Office of Energy and Environmental Affairs, made reservations in violation of a Massachusetts conflict of interest law that prohibits state employees from having “a financial interest . . . in a contract made by a state agency, in which the commonwealth or a state agency is an interested party” and the employee knows of this interest.

Sarah Stolper, a WCVB producer for consumer reporter Susan Wornick, wanted to find out whether any state employees had made reservations. She asked DOER for a list of the names and addresses of all the people who had secured reservations along with the rebate amounts and how the reservations were made, but the agency refused to hand over the records.

The agency claimed the privacy exemption, which, of all the 70 or so exemptions available under the Public Records Law, is the one most frequently invoked. It permits officials to withhold documents containing information about a specifically named individual which, if disclosed, would be an unwarranted invasion of his or her personal privacy.  Its application is limited to “intimate details of a highly personal nature.”  If the details are determined to be highly personal, it is then necessary to determine whether the public interest in disclosure outweighs the privacy interest of the individual.

DOER Deputy General Counsel Rachel Graham Evans sent a letter to Stolper indicating that the state’s interest in encouraging robust public participation in the state’s energy efficiency . . . programs weighs heavily against the dampening effect of exposing the personal information of participants.”

Stephan Yuhan, an attorney with the Hearst Corporation, WCVB’s parent company, appealed DOER’s denial to Secretary of State William Galvin’s office, arguing the public interest in disclosure far outweighs any privacy interests. “The public has an interest in knowing whether public servants are carrying out their duties in an efficient and law-abiding manner,” he said in his appeal.

Last August, Alan Cote, who handles public records appeals for Galvin, ordered DOER to turn over the records to Stolper. “The information requested is generic and the invasion, if any, is minimal,” Cote wrote. “A mere list of names and addresses of persons who signed up for a state program is not enough to constitute an unwarranted invasion [of privacy].”

Cote noted that the individuals who signed up for the rebates were not seeking highly personal information, such as unemployment benefits.  He also said the public is very interested in the rebate program out of concern for how it was administered and the allegation that employees were permitted to participate.

Cote denied a request for reconsideration in January, telling the DOER’s attorney that, if she is not satisfied with his ruling, she can take the matter into court. As of now, the  case is in limbo: DOER has not gone into court and, according to Stolper, hasn’t turned over the records.