Julia Malakie v. Newton, City of - Purchasing Department (SPR 20181265)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 5, 2018 SPRlS/1265 Nicholas Read City of Newton - Purchasing Department 1000 Commonwealth A venue, Room 201 Newton, MA 02459 Dear Mr. Read: I have received the petition of Julia Malakie appealing the response of the City of Newton (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Malakie requested "[t]he electronic versions ... of bids submitted in response to RFP 18-11." The City provided a response on July 30, 2018, denying access to responsive records pursuant to Exemptions (a) and (h) of the Public Records Law. G. L. c. 4, § 7(26)(a), (h). Unsatisfied with the City's response, Ms. Malakie petitioned this office and this appeal, SPR18/1265, was opened as a result. Subsequent to the opening of this appeal, the City provided a response on August 22, 2018. 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). 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, § lO(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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Nicholas Read SPR18/1265 Page 2 September 5, 2018 The City's July 30th response In its July 30, 2018 response, the City indicates that pursuant to G. L. c. 30B, § 6, it is allowed "to weigh the relative merits of proposals submitted by competing offerors. Unlike the bidding process, the RFP process may not always result in selection of the proposer offering the lowest price." The City explains that "[t]he principal characteristic of an RFP is that proposers submit 2 separate proposals:(!) one proposal that has all the proposer's bid information except price, called the 'Technical Proposal' and (2) the Price Proposal." The City explains that it "opens and evaluates the Technical Proposals and, once the evaluations are complete, it opens the Price Proposals. After reviewing the Technical and Price Proposals, the City then selects the most advantageous proposer as a winner, taking into consideration price and non-price submissions." Accordingly, the City claims the Technical Proposals are exempt from disclosure under Exemptions (a) and (h) of the Public Records Law. Exemption (a) The City cites G. L. c. 30B, § 6, as it operates through Exemption (a) of the Public Records Law, to withhold responsive records. 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 Attorney 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.

Nicholas Read SPR18/1265 Page 3 September 5, 2018 The statute provides in relevant part: The chief procurement officer shall not open the proposals publicly, but shall open them in the presence of one or more witnesses at the time specified in the request for proposals. Notwithstanding the provisions ofs ection seven ofc hapter four, until the completion oft he evaluations, or until the time for acceptance specified in the request for proposals, whichever occurs earlier, the contents of the proposals shallremain confidential and shall not be disclosed to competing offerors. At the opening of proposals the chief procurement officer shall prepare a register of proposals which shall include the name of each offeror and the number of modifications, if any, received. The register of proposals shall be open for public inspection. The chief procurement officer may open the price proposals at a later time, and shall open the price proposals so as to avoid disclosure to the individuals evaluating the proposals on the basis of criteria other than price. G. L. c. 30B, § 6(d) (emphasis added). Under its Exemption (a) claim, the City asserts that "[a]ccording to the statute, the Technical Proposals are not opened publicly." Exemption (h) Exemption (h) permits the withholding of: 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. Making references to pages 18-19 of the Guide to the Massachusetts Public Records Law, the City asserts that if it "issues an RFP under M. G. L. c. 308, §6, as it did for RFP18-111,

Nicholas Read SPR18/1265 Page4 September 5, 2018 the proposals are not public records until both the Technical and the Price Proposals have been opened, i.e., after the evaluation committee has completed its evaluations. The evaluation committee materials are public records only after the most advantageous proposer has been identified." The City's August 22nd supplemental response Responding to claims made in Ms. Malakie's petition, the City in its August 23, 2018 response, reiterates the above referenced statute and asserts that evaluation of the bids are not complete. Explaining when acceptance kicks in under the RFP, the City notes that" ... acceptance refers to the underlying nature of a contract, i.e., offer and acceptance. In this context, the submitted proposal is the offer, and the City's notice to the winning proposer of the award is acceptance." The City indicates that its reading of acceptance is consistent with M. G. L. c. 30B, § 6U), which reads in pertinent part: The chief procurement officer shall award the contract by written notice to the selected offeror within the time for acceptance specified in the request for proposals. The time for acceptance may be extended for up to 45 days by mutual agreement between the governmental body and the responsible and responsive offeror offering the most advantageous proposal as determined by the chief procurement officer. G. L. c. 30B, § 6U). The City explains "[t]hat the acceptance is the award date is consistent with the RFP which states ' [u ]pon acceptance, the Awarding Authority plans to enter into negotiations with the winning proponent for an EMSC with a performance term of twenty (20) years."' The City contends that "[t]he projected award date in the RFP ('Anticipated Vendor Selection') is clearly qualified as an estimate." Regarding the uncertainty about when the City will make the proposals public, the City asserts that acceptance kicks in when it "opens negotiations with the most advantageous proposer, which would be after the evaluations of the Technical and Price Proposals are complete, and the award has been duly approved by the Building Commissioner and the Mayor. Given the complex nature of the procurement it would be hard to set a date certain, which is why estimates were used." The City notes that unlike bids, many factors go into the selection of the winning proposer when it comes to RFPs. Based on the City' response it remains unclear how the City has met the requirements of the statute. The statute indicates that the proposals shall not be disclosed to competing offerors "until the completion oft he evaluations, or until the time for acceptance specified in the request for proposals, whichever occurs earlier ... " Although it appears the City's evaluation process is

Nicholas Read SPR18/1265 Page 5 September 5, 2018 not complete, the City indicated in the RFP that its "Anticipated Vendor Selection" date is August 17, 2018. In light of the fact that the City's "Anticipated Vendor Selection" date has passed, it is uncertain how the contents of the proposals still remains confidential. The City must clarify this matter. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, the City is ordered to provide Ms. Malakie with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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, ~.~ Supervisor of Records cc: Julia Malakie