Jillian Bertrand v. Department of Veteran Services (SPR 20220780)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 14, 2022 SPR22/0780 Matthew Deacon, Esq. General Counsel Department of Veteran Services 600 Washington Street, 7th Floor Boston, MA 02111 Dear Attorney Deacon: I have received the petition of Jillian Bertrand, Esq., of Pyle Rome Ehrenberg PC, appealing the response of the Department of Veteran Services (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 11, 2022, Attorney Bertrand requested “. . . a copy of the proposal made by Penrose that has tentatively been awarded for the redevelopment of the Chelsea Soldiers’ Home and accompanying ongoing services.” Previous appeal This request was the subject of a previous appeal. See SPR22/0688 Determination of the Supervisor of Records (March 31, 2022). SPR22/0688 was closed after the Department provided a supplemental response on March 31, 2022. Unsatisfied with the Department’s response, Attorney Bertrand petitioned this office and this appeal, SPR22/0780, 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 agency or municipality 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); 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 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

Matthew Deacon, Esq. SPR22/0780 Page 2 April 14, 2022 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 Department’s March 31st response In its March 31, 2022 response, the Department asserts that the records are exempt under Exemptions (d) and (h) of the Public Records Law. G. L. c. 4, § 7(26)(d), (h). Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based. G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters ----------------------- used in the development of government policy are subject to disclosure). Under Exemption (d), the Department indicates that “. . . among the documents exempted from mandatory disclosure are ‘inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency...’. . . By its terms, this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete. See Brant, Public Records, FIPA and CORI: How Massachusetts Balances Privacy and the Right to Know, 15 Suffolk U.L.Rev. 23, 31 (1981). . . . The RFP contemplates the delivery of services to veterans at the Chelsea Soldiers’ Home throughout the redevelopment process: The Commonwealth is committed to providing current residents the opportunity to remain on the Domiciliary Campus throughout the phased redevelopment

Matthew Deacon, Esq. SPR22/0780 Page 3 April 14, 2022 period. As the project is phased, the Commonwealth will provide current residents who choose not to move into the newly developed units or who are not eligible, the opportunity to remain within Commonwealth managed portions of the Domiciliary Campus, in units that have not yet been redeveloped. The Commonwealth will manage the relocation of residents within the Domiciliary Campus as required. (RFP, Page 11).” The Department further asserts, “in this case, Exemption (d) is applicable as the Chelsea Soldiers’ Home, DCAMM, and DVS are developing, and negotiating with Pennrose, the terms by which Chelsea Soldiers’ Home residents will continuously receive services throughout the redevelopment. The Requested Documents pertain to those policy positions currently under development by the agency. . . . [D]isclosure of these documents would taint the procurement process and have a detrimental effect on the ability of the agency to develop policy.” Based on the Department’s response, I find that it is unclear whether there are any completed reports or factual information contained in the responsive records that can be provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Exemption (h) Exemption (h) permits the withholding of: proposals and bids to enter into any contract or agreement until the time for the opening of bids in the case of proposals or bids to be opened publicly, and until the time for the receipt of bids or proposals has expired in all other cases; and inter-agency or intra-agency communications made in connection with an evaluation process for reviewing bids or proposals, prior to a decision to enter into negotiations with or to award a contract to, a particular person. G. L. c. 4, § 7(26)(h). Exemption (h) serves to protect the integrity of the bidding procedure by keeping all bidders and potential bidders on equal footing. See Datatrol Inc. v. State Purchasing Agent, 379 Mass. 679, 691 (1980) (the purposes of competitive bidding go beyond economy and efficient administration to the prevention of favoritism in the awarding of government contracts). Competitive bidding ensures full publicity as to the contract and encourages the guarding of the public welfare. Id. at 699. Although the competitive bidding process does not have the advantages of more flexible purchasing policies, the Legislature has mandated the process to foster honesty and accountability in government. Id. at 701. Under Exemption (h), the Department explains that “[t]he RFP issued broad goals for the redevelopment of the property for both construction and services for residents of the

Matthew Deacon, Esq. SPR22/0780 Page 4 April 14, 2022 facility. The RFP also set forth selection criteria to be considered and clearly stated that negotiations among all bidders would be ongoing until the signing of a Master Disposition Agreement and Ground Lease (RFP, Page 36). Additionally, DCAMM made clear in the RFP that it would continue to negotiate with back-up proposers[.]” The Department further explains that “[o]n January 7, 2021, a bidders conference took place and DCAMM met with bidders to discuss the project. DCAMM received four (4) proposals in response to the RFP and on September 27, 2021 selected a proposal to provisionally designate Pennrose LLC as the selected developer. Negotiations have been ongoing since their provisional selection.” The Department further posits that “. . . because of the ongoing negotiations with bidders and DCAMM’s right to negotiate with back up bidders as articulated in the RFP, exemption (h) allows for the withholding of the Requested Records until the awarding of the contract.” The Department is advised that the first clause of Exemption (h) permits the withholding of proposals and bids “until the time for the opening of bids in the case of proposals or bids to be opened publicly, and until the time for the receipt of bids or proposals has expired in all other cases.” Consequently, where it appears that the receipt of proposals has expired and Pennrose LLC has been provisionally designated as the selected developer, I find that the Department has not met its burden to withhold the requested proposal under Exemption (h). Conclusion Accordingly, the Department is ordered to provide Attorney Bertand with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Jillian Bertrand, Esq.