Gregory Yanchenko v. Division of Capital Asset Management and Maintenance (SPR 20191730)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 10, 2019 SPR19/1730 Christopher Guerin Records Access Officer Division of Capital Asset Management and Maintenance One Ashbmion Place, 15th Floor Boston, MA 02108 Dear Mr. Guerin: I have received the petition of Gregory Yanchenko appealing the response of the Division of Capital Asset Management and Maintenance (Division) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on July 21, 2019, Mr. Yanchenko · requested 20 categories of records regarding an identified project. Previous petition and appeal The requested records were the subject of a previous petition and subsequent appeal. See SPR19/1565 Determination of the Supervisor of Records (August 12, 2019) and SPR19/1641 Determination of the Supervisor of Records (August 26, 2019). I closed SPR19/1641 based on the Division's provision of a response on August 23, 2019. Unsatisfied with the Division's response, Mr. Yanchenko petitioned this office and this appeal, SPR19/l 730, was opened as a result. Tlte 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 speqificity requirement a custodian One Ashbu1ion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Christopher Guerin SPR19/l 730 Page 2 September 10, 2019 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Division's August 23rd response In its August 23, 2019 response, the Division requests that the Supervisor of Records deny or decline to opine on this appeal pursuant to 950 C.M.R. 32.08(2)(b). The Division explains that Mr. Yanchenko " ... a Director ofBidDocs Online, Inc. ('BidDocs') has brought a Massachusetts Superior Court action (1684CV3068) against [the Division] as a result of a procurement decision which selected Info Tech, Inc. ('Info Tech') over BidDocs." The Division explains that its" ... Project Manager involved in that procurement and who is managing the current Info Tech contract was twice deposed by BidDocs['] counsel prior to the court's closure of discovery. The subject requests demand information which [Mr. Yanchenko] knew, or should have known, was within the purview of [the Division's] Project Manager at the time of her depositions and during the period of discovery." The Division further states that "[t]he period for discovery has been closed by the court and a trial is scheduled to commence on September 3, 2019. The current suit is the second action which [Mr. Yanchenko] has brought against [the Division] related to the aforementioned failed procurement." Consequently, the Division contends that this appeal should be denied because, ''1. the requested records relate to ongoing active litigation commenced by [Mr. Yanchenko]; 2. the requests came three years after the litigation was commenced, and after two depositions of the Project Manager overseeing the challenged procurement and resultant contract; and 3. the requests were made after the court closed discovery and are designed or intended to circumvent that court order." Based on the Division's response, although there may be an ongoing litigation involving the Division and Mr. Yanchenko, where 950 C.M.R. 32.08(2)(b) states that the Supervisor of Records may deny an appeal after a determination that the public recotds in question are the subjects of disputes in active litigation, I find the Division must provide additional information regarding how the requested records are related to or are the subjects of dispute in active litigation. Conclusion Accordingly, the Division is ordered to provide Mr. Yanchenko 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.

Christopher Guerin SPR19/1730 Page 3 September 10, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Gregory Yanchenko