Colby Jackson v. Gloucester, City of - City Clerk (SPR 20220852)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 27, 2022 SPR22/0852 Joanne M. Senos City Clerk City of Gloucester City Hall 9 Dale Avenue Gloucester, MA 01930 Dear Ms. Senos: I have received the petition of Colby Jackson, Esq., of Krakow, Souris & Landry, LLC, on behalf of Christopher J. Galatis, appealing the response of the City of Gloucester (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 14, 2022, Christopher J. Galatis requested “…a copy of the complete SOQs submitted in response to the RFQ for a certain project for all CM/GC respondents, qualified or not.” Previous appeal This request was the subject of a previous appeal. See SPR22/0609 Determination of the Supervisor of Records (March 16, 2022). The City responded on April 11, 2022. Unsatisfied with the response, Attorney Jackson petitioned this office and this appeal, SPR22/0852, 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 establishing the applicability of an exemption). To meet the specificity requirement a custodian 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

Joanne M. Senos SPR22/0852 Page 2 April 27, 2022 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The City’s April 11th response In its April 11th response, the City produced certain documents and cited Exemptions (a) and (h) to withhold the remaining responsive records. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records 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. The City references G. L. c.149A, § 6(e) in support of exempting the requested records. The language of this subsection is as follows: The selection committee shall commence non-fee negotiations with the highest ranked construction management at risk firm. If the selection committee determines that negotiations with the highest ranked construction management at risk firm will not result in a contract acceptable to the public agency, the selection committee shall terminate negotiations with the highest ranked construction management at risk firm and shall commence negotiations with the next highest ranked construction management at risk firm. The process shall continue until the selection committee has reached an acceptable contract with one of the prequalified construction management at risk firms. The list and ranking of proposed construction management at risk firms shall be certified by the public agency and made available as a public record after the contract award.

Joanne M. Senos SPR22/0852 Page 3 April 27, 2022 Upon review, the language of this statute does not 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. Consequently, the requested records cannot be withheld under Exemption (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. With respect to Exemption (h), the City states, “[a]s a contract has still not been awarded as of today’s date, the exemptions still apply.” The City 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.” Upon review, it is unclear whether the bids have been opened publicly and whether the time for the receipt of bids has expired. The City must clarify. Conclusion Accordingly, the City is ordered to provide Attorney Jackson 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.

Joanne M. Senos SPR22/0852 Page 4 April 27, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Colby Jackson, Esq., Krisna M. Basu, Esq.