Gregory Yanchenko v. Division of Capital Asset Management (SPR 20191962)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

October 9, 2019 SPR19/1962

Christopher Guerin, Esq.

Records Access Officer

Division of Capital Asset Management and Maintenance One Ashburton Place, 15"" Floor

Boston, MA 02108 .

Dear Attorney 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, § 10A; 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 appeals

The requested records were the subject of a previous petition and subsequent appeals. See SPR19/1565 Determination of the Supervisor of Records (August 12, 2019); SPR19/1641 Determination of the Supervisor of Records (August 26, 2019) and SPR19/1730 Determination of the Supervisor of Records (September 10, 2019). In my September 10" determination, I directed the Division to provide additional information regarding how the requested records are related to or are the subjects of dispute in active litigation. Following the September 10" determination, the Division provided a supplemental response dated September 24, 2019. Unsatisfied with the Division’s response, Mr. Veloso petitioned this office and this appeal, SPR19/1962, 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, § 10A(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

Christopher Guerin, Esq. SPR19/1962 Page 2 October 9, 2019

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, § 10(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, § 10(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 September 24" response

In its September 24, 2019 response, the Division reiterates that “. , . BidDocs Online, Inc. (‘BidDocs’), of which Mr. Yanchenko is a Director, 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 asserts that “[t]he primary contention of BidDocs’ Verified complaint . . . is that [the Division], in both its procurement evaluation process and its prosecution of the awarded contract, unfairly favored Info Tech and was therefore engaged in an unlawful and discriminatory procurement.” The Division explains that following discovery, in order to evidence the alleged favorable treatment given Info Tech, Mr. Yanchenko by way of a public record “. . . request[s] detailed information relating to how [the Division] communicated with Info Tech post-award, and how it reviewed and approved the work of Info Tech during development of [the Division’s] online bidding platform.” The Division contends that “{t]his information was available throughout the course of the now-closed period for discovery.”

The Division further asserts that the requested records relate to the ongoing litigation, because “. .. among BidDocs’ several allegations currently in litigation are its assertions that (a) [the Division] unfairly disregarded certain Info Tech’s responses to that Request for Response issued by [the Division] on or about October 26, 2015 (the ‘RFR’) and (b) later worked with Info Tech on matters not included in Info Tech’s RFR response following execution of the contract.” The Division also asserts that in support of these allegations, “. . . BidDocs cites interactions between [the Division] and Info Tech which took place after award of the project and during the prosecution of the subject contract... .”

The Division reiterates that its “. .. Project Manager involved in the procurement and prosecution of the Info Tech contract . .. was twice deposed by BidDocs’ counsel. The subject record requests demand information which Mr. Yanchenko and his counsel 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 references portions of the depositions to support its claim and further asserts that some of the allegations cited in the complaint“. . . relates to several of Mr. Yanchenko’s current records request (. . . relating to contract amendments, time and material costs, and acceptance or rejection of deliverables),” The Division

Christopher Guerin, Esq. SPR19/1962 Page 3 October 9, 2019

concludes that based on the foregoing, where it is “. . . clear that the records sought post- discovery, were intended to support key allegations forwarded by BidDocs in its case against [the Division] and are inextricably related to ongoing litigation[,]” the appeal should be denied pursuant to 950 C.M.R. 32.08(2).

In light of the information provided by the Division in its September 24" response which explains that the requested records relate to the subject matter of the Massachusetts Superior Court litigation filed by Mr. Veloso, I find that these records are the subject of dispute in active litigation. Accordingly, I decline to opine on this matter. See 950 C.M.R. 32,08(2)(b)(1) (the Supervisor may deny an appeal if, in the opinion of the Supervisor, “the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation”). It should be noted that a change in the status of this action could impact the applicability of 950 C.MLR. 32.08(2)(b)(1).

Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records

cc: Anthony Veloso