Allison Jarmanning v. Somerville, City of - City Solicitor (SPR 20180543)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 4, 2018 SPR18/543 Francis X. Wright, Jr., Esq. City Solicitor City of Sommerville Law Department 93 Highland A venue Somerville, MA 02143 Dear Attorney Wright: I have received the petition of Allison Jarmanning of WBUR appealing the response of the City of Somerville Law Department (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Jarmanning requested a copy of: 1. Any correspondence with Amazon regarding incentive packages, tax breaks or other offerings, for Amazon's HQ2 and other expansions in the City; and 2. Any internal emails, messages, memos, etc. pertaining to Amazon's HQ2 and other expansions in Somerville. In its April 5, 2018 letter, the City indicated that a prior response on March 15th the City provided Ms. Jarmanning with a link to a document responsive to Request Number 1. The City also indicated that it is withholding the balance of all of the other records responsive to the requests under Exemption (h) of the Public Records Law. Unsatisfied with the denial, Ms. Jarmanning petitioned the Supervisor of Records (Supervisor), and this appeal was opened. A Public Records Division staff member provided the City with a copy of the appeal file, including Ms. Jarmanning's petition. It is also my understanding that the City's Special Counsel Eileen McGettigan discussed this appeal with a Public Records Division attorney on May 3rd. 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, § lOA(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). 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

Francis X. Wright, Jr., Esq. SPR18/543 Page 2 May 4, 2018 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, § 1O (b )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 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). The City's April 5th response In its April 5th response, the City indicated that it provided a link to a document which was responsive to Ms. Jarmanning's Request Number 1. In a May 3rd conversation with a Public Records Division attorney, Attorney McGettigan indicated that the document involved the initial phase of the City's proposal to Amazon regarding HQ2, and that the City was selected to move forward as a semi-finalist by Amazon. The City is withholding the balance of the responsive records pursuant to Exemption (h) of the Public Records Law. Exemption (h) proposals and bids to enter into any contract or agreement until the time for the opening of bids in the case of proposals or bids to be opened publicly, and until the time for the receipt of bids or proposals has expired in all other cases; and inter-agency or intra-agency communications made in connection with an evaluation process for reviewing bids or proposals, prior to a decision to enter into negotiations with or to award a contract to, a particular person G. L. C. 4, § 7 (26)(h). Exemption (h) serves to protect the integrity of the bidding procedure by keeping all bidders and potential bidders on equal footing. See Datatrol Inc. v. State Purchasing Agent, 379 Mass. 679, 691 (1980) (the purposes of competitive bidding go beyond economy and efficient administration to the prevention of favoritism in the awarding of government contracts). Competitive bidding ensures full publicity as to the contract and encourages the guarding of the public welfare. Id. at 699. Although the competitive bidding process does not have the advantages of more flexible purchasing policies, the Legislature has mandated the process to foster honesty and accountability in government. Id. at 701. It is unclear how the requested communications with Amazon or internal emails, messages, and memos pertaining to Amazon's HQ2 and other expansions in Somerville are either proposals or bids to enter into any contract or agreement prior to the time for the receipt of bids or proposals has expired, or inter-agency or intra-agency communications made in connection with an evaluation process for reviewing bids or proposals. See G. L. c. 4, § 7

Francis X. Wright, Jr., Esq. SPR18/543 Page 3 May 4, 2018 (26)(h). Consequently, I find that the City has not demonstrated how Exemption (h) will allow the City to withhold the records responsive to Ms. Jarmanning's request. Burden of Specificity in responding and claiming exemptions Pursuant to the Public Records Law, the burden shall be upon the custodian to prove with specificity how Exemption (h) applies to withhold all the responsive records. See G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The City did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. 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). The City must produce any non-exempt, segregable portions of the public records. G. L. C. 66, § lO(a). Furthermore, the City did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. Here, the City merely stated that all the remaining requested records are exempt under Exemption (h). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Consequently, the City must provide Ms. Jarmanning with a response identifying any records, categories of records or portions of records it is withholding. It is unclear whether the City is in possession of all the requested records or categories of records; therefore, the City must also identify any public records sought that are not within the possession, custody or control of the City, if known, and provide Ms. Jarmanning with a response indicating as such. See G. L. c. 66, § 1O (b )(ii), (iii). Order Given that the City did not provide the specificity required in withholding the records, as required by statute, the City cannot withhold the requested records in their entirety pursuant to Exemption (h). See G. L. c. 66, § 1O (b )(iv). Accordingly, the City is ordered to review the responsive records, redact where necessary and provide Ms. Jarmanning with the requested records, 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. The City may request a reconsideration of this determination within 10 business days of the date of this letter.

Francis X. Wright, Jr., Esq. SPR18/543 Page 4 May 4, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Allison Jarrnanning Eileen McGettigan, Esq.