Stan Robinson v. Wayland Town Administrator (SPR 20200368)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 11, 2020 SPR20/0368 Elizabeth Doucette Assistant Town Administrator Town of Wayland 41 Cochituate Road Wayland, MA 01778 Dear Ms. Doucette: I have received the petition of Stan Robinson appealing the response of the Town of Wayland (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Robinson requested 5 identified proposals received by the Town in response to RFP 20-2030. Prior Appeal The requested records have been the subject of a previous appeal. See SPR20/0157 Determination of the Supervisor of Records (February 11, 2020). In my February 11111 determination, I found that the Town had not met its burden to withhold responsive records, and ordered the Town to provide a new response to Mr. Robinson. The Town provided Mr. Robinson with this response on February 24, 2020, withholding responsive records pursuant to Exemption (a) of the Public Records Law. Unsatisfied with this response, Mr. Robinson petitioned this office and this appeal, SPR 20/0368, 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, § IOA(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 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

Elizabeth Doucette SPR20/0368 Page 2 March 11, 2020 order to withhold a requested record. G. L. c. 66, § IO(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 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). Current Appeal In its February 24th response, the Town states that it is withholding responsive records pursuant to G. L. c. 30B, § 6, as it operates through Exemption (a) of the Public Records Law. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords 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. G. L. c. 30, § 6 provides, in pertinent part: (a) A chief procurement officer may enter into procurement contracts in the amount of more than $50,000 utilizing competitive sealed proposals, in accordance with the provisions of this section. The chief procurement officer shall not solicit competitive sealed proposals unless he has determined in writing that

Elizabeth Doucette SPR20/0368 Page 3 March 11, 2020 . selection of the most advantageous offer requires comparative judgments of factors in addition to price, specifying the reasons for his determination. (d)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 of section seven of chapter four, until the completion of the evaluations, or until the time for acceptance specified in the request for proposals, whichever occurs earlier, the contents of the proposals shall remain 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. G. L. c. 30B, § 6. In its February 24th response, the Town states that the proposals requested by Mr. Robinson "were submitted to the Town in response to the Town of Wayland's Request for Proposals (RFP) 20-2030 for an Advanced Metering Infrastructure System. The project was estimated to cost more than $50,000 and the Town has appointed a Chief Procurement Officer, therefore ... the Town elected to follow the M. G. L. c. 30B RFP process to award the contract .... " The Town further explains that "[it] issued the RFP on November 6, 2019 and accepted proposals until December 9, 2019;" however, the Town also asserts "a 'time for acceptance' was not specified in the RFP, therefore, the proposals will be made public after the evaluation process is completed .... " In his appeal petition Mr. Robinson indicates "[o ]ne remarkable assertion has been added, to the effect that the actual deadline for acceptance was not the one stated in the Town's RFP and honored by 5 proposers!" Based on the Town's response which explains that it accepted proposals until December 9, 2019, as well as the issue raised in Mr. Robinson's appeal regarding the deadline for acceptance, I find it is unclear how "the time for acceptance specified in the request for proposals," as contemplated in G. L. c. 30B, § 6, has not occurrvd. Therefore, it remains unclear how G. L. c. 30B, § 6 applies to withhold the responsive records. The Town must address this matter. Conclusion Accordingly, the Town is ordered to provide a response to Mr. Robinson in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) business days. A copy of this 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.

Elizabeth Doucette SPR20/0368 Page 4 March 11, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Stan Robinson