Paul Coutinho v. Blue Hills Regional Technical School District (SPR 20191121)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 14, 2019 SPR19/1121 Steven Moore Assistant Superintendent for Business and Personnel Blue Hills Regional Vocational School District 800 Randolph Street Canton, MA 02021 Dear Mr. Moore: I have received the petition of Paul Coutinho appealing the response of the Blue Hills Regional Vocational School District (District) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on November 14, 2018, Mr. Coutinho requested certain categories of responsive records. This appeal pertains to requests 4-6, requesting records relating to solicitations and bids, as well as contracts executed by subcontractors. The District provided certain responsive records over the course of time and indicated that it had provided all documents responsive to Mr. Coutinho's November 14th request on May 2, 2019. After several communications between the District and Mr. Coutinho regarding outstanding documents, the District provided responses on May 16, 2019, and May 29, 2019. Unsatisfied with the District's responses, Mr. Coutinho petitioned this office and this appeal, SPR19/1121, 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, § 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. 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

Mr. Steven Moore SPR19/1121 Page 2 June 14, 2019 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The District's May 16th and May 29th responses In its May 16, 2019 response, the District indicated that with respect to Mr. Coutinho's requests 4-6, it is " ... still waiting for some of the requested records from Consigli to fulfill [its] request for ... items 4,5, and 6." In its May 29, 2019 response, the District indicates that after requesting documents from Consigli, Consigli" ... forwarded the request to NE Tech Air, as those documents are not in Consigli's possession." The District states that "[t]he sub contractor information [Mr. Coutinho] ha[s] asked for is an agreement between the subs and Tech Air. NE Tech Air has denied sending the information to Consigli." The District then attached a letter from NE Tech Air, which asserts that NE Tech Air" ... does not agree that its subcontract with Consigli Construction obligates it to provide Consigli copies of its subcontracts with its direct subcontractors or suppliers. Accordingly, New England Tech Air, Inc. respectfully declines Consigli's request for that information ...." Agency relationship Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § lO(a); see also Reinstein, 378 Mass. at 289-90. In the District's response, it forwarded Mr. Coutinho's request to Consigli, who subsequently forwarded the request to its sub-contractor, NE Tech Air. According to the letter attached to the District's response, NE Tech Air declined to produce the responsive records to Consigli. The District is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. Consequently, it is unclear whether an agency relationship exists between the District and NE Tech Air. It is additionally uncertain how the District would not be entitled to obtain the records requested by Mr. Coutinho from the sub-contractor, NE Tech Air. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607-08 (1996) ( discussing agency relationship between a public and private entity within the context of the Public Records Law). I find the District must provide additional information regarding this issue. Conclusion Accordingly, the District is ordered to provide Mr. Coutinho 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

Mr. Steven Moore SPR19/1121 Page 3 June 14, 2019 pre@sec.state.ma. us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Paul Coutinho