Gregory Yanchenko v. Division of Capital Asset Management (SPR 20191565)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray .supervisor of Records August 12, 2018 SPR19/1565 Christopher D. Guerin Records Access Officer Division of Capital Asset Management & Maintenance One Ashburton Place, 15th Floor Boston, MA 02108 Dear Mr. Guerin: I have received your petition on behalf of the Division of Capital Asset Management & Maintenance (DCAMM) seeking relief from its obligation to produce responsive records. G. L. c. 66, § IO(c); see also 950 C.M.R. 32.06(4). As required by law, DCAMM furnished a copy of this petition to the requestor. G. L. c. 66, § 10( c) . In a request received by DCAMM on July 22, 2019 Gregory Yanchenko ofBidDocs Online, Inc. (BidDocs) sought several categories of records related to a Statement of Work between an identified company and DCAMM (Request). Petitions for an extension of time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. 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

Christopher D. Guerin SPR19/1565 Page 2 August 12, 2019 G. L. c. 66, § lO(c). If the Supervisor determines that.the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requester within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current petition In its August 5, 2019 petition DCAMM seeks" ... an opinion regarding whether DCAMM has an obligation to provide the requested information and, if so, to be relieved of such obligation to provide public records in response to the Request." You indicate that "[b] y way of background, [BidDocs], of which Mr. Yanchenko is a Director, has brought a Massachusetts Superior Cami action against DCAMM as a result of a procurement which selected Info Tech, Inc. over BidDocs. The period for discovery has been closed by the court and a trial is scheduled for September, 2019. The DCAMM Project Manager involved in that procurement and managing the Info Tech, Inc. contract was twice deposed by BidDocs counsel prior to the comi's closure of discovery. The subject record requests demand information which Mr. Yanchenko knew, or should have known, was within the purview of DCAMM's Project Manager at the time of her depositions and during the period of discovery." DCAMM further notes that it seeks" ... relief from any obligation to produce public records specifically because: 1. the requested records relate to ongoing litigation commenced by the Requester; 2. the Request came after two depositions of the Project Manager overseeing the challenged procurement and resultant contract; 3. the Request was made in an effmi to circumvent the trail court's previous order limiting discover; and 4. the Request consists of a series of contemporaneous requests that are frivolous or designed or intended to unduly burden, harass or intimidate DCAMM and the Project Manager on the eve of trail. By way of example, our analysis of electronic communications alone disclosed hundreds of emails which will need to be collected, segregated and examined." You assert that "[g]iven the nature of the Request, the prior opportunities afforded Mr. Yanchenko during discovery, and the course of dealing between the Requester and this office, we believe the appropriate remedy is to relieve this office from its obligation to produce records in response to the Request." The Superior Cami ruled on a matter involving public records requests that were intended to intimidate or harass. Specifically, in Erickson v. Exec. Office of Envtl. Affairs, 2006 Mass. Super LEXIS 476 (Aug. 4, 2006) the plaintiff requested dozens of public records from the defendant which the court found to be overly broad and, in some cases, unlimited in time. The

Christopher D. Guerin SPR19/1565 Page 3 August 12, 2019 plaintiff was also found to be abusive to the Court and its staff as well as harassing to the opposing party. Id. Based on the information provided in the August 5th petition, I find that DCAMM has not met its burden to demonstrate that the request received on July 2211 d, which relates to a Statement of Work between DCAMM and an identified company, is frivolous or designed to intimidate or harass in a manner similar to the requests described in Erickson. Conclusion Accordingly, I decline to grant DCAMM's petition under G. L. c. 66, § lO(c) for relief of its obligation to provide public records responsive to Mr. Yanchenko's request. It should be noted, however, that the Supervisor of Records may decline to opine on an appeal from a requestor upon a determination that the public records in question are the subject of a dispute in active litigation. See 950 C.M.R. 32.08(2)(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: Gregory Yanchenko