Mickey Long v. Division of Capital Asset Management and Maintenance (SPR 20212869)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 9, 2021 SPR21/2869 Christopher D. Guerin, Esq. Division of Capital Asset Management & Maintenance Office of the General Counsel One Ashburton Place, 15th Floor Boston, MA 02108 Dear Attorney Guerin: I have received the petition of Mickey Long, Esq., on behalf of his client, Stephen Williams of Iron Workers Local 7 Boston, MA, appealing the response of the Division of Capital Asset Management & Maintenance (DCAMM) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 18, 2021, Mr. Williams of the Iron Workers Local 7 requested: “…a copy of the certified payrolls of, [Cape Code Community College New Science & Engineering] project, submitted by L & L Contracting, Inc. and any other subcontractor who performed miscellaneous metals; and a copy of their contract.” On October 27, 2021, DCAMM provided Mr. Williams with a response to the request. In its response, DCAMM asserts, “[a] diligent search of DCAMM records did not reveal any documents responsive to your request. Please note, our office has no information responsive to your request with reference to a contract, because the award and notice to proceed for the sub- bidders exist only with the General Contractor.” Unsatisfied with the response, Attorney Long petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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). 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends 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, Esq. SPR21/2869 Page 2 November 9, 2021 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). 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. Certified payroll records DCAMM is advised that disclosure of certified payroll records is governed by G. L. c. 149, § 27B, which states in relevant part: Every contractor, subcontractor or public body engaged in said public works by an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth or county, or municipality or any subdivision thereof to which sections twenty-seven and twenty-seven A apply shall keep a true and accurate record of all mechanics and apprentices, teamsters, chauffeurs and laborers employed thereon, showing the name, address and occupational classification of each such employee on said works, and the hours worked by, and the wages paid to, each such employee, and shall submit weekly to the awarding authority by mail, first class postage prepaid, or by electronic mail, certified payroll records that shall consist of a complete copy of those records Such records shall be open to inspection by any authorized representative of the department at any reasonable time, and as often as may be necessary... The above-mentioned copies of payroll records and statements of compliance shall be available for inspection by any interested party filing a written request to the awarding authority for such inspection and copying. G. L. c. 149, § 27B. The statute provides that copies of certified payroll records must be available for inspection and copying by any interested party filing written request to the awarding authority. Id. The statute does not limit disclosure, but rather evidences a legislative intent to make these records available for inspection. Where the language of the statute does not restrict disclosure, the statutory right of citizens to inspect under the Public Records Law prevails. See Attorney General v. Collector of Lynn et al., 377 Mass. 151, 154 (1979) (statute providing that records be available to town officials does not exempt

Christopher D. Guerin, Esq. SPR21/2869 Page 3 November 9, 2021 records since statute does not limit disclosure to the public); see also G. L. c. 4, § 7(26)(a) (exempting those records which are specifically or by necessary implication exempt from disclosure by statute). Public Records; 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, § 10(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). DCAMM 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. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, the custodian has a duty to make the public records available in a location convenient to the general public for inspection and copying. Based on DCAMM’s October 27th response, it is unclear whether there is an agency relationship between DCAMM and the General Contractor. As such, I find DCAMM must provide additional information regarding the relationship between it and the General Contractor and the scope of any such relationship in order to determine whether DCAMM has met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody or control of the custodian of records at the time of the request. In a November 4th email, you informed this office that a supplemental response would be provided to Attorney Long. Conclusion Accordingly, DCAMM is ordered to provide said response to Attorney Long in accordance with this order, the Public Records Law and its Regulations within 10 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mickey Long, Esq.