Mickey Long v. Massachusetts Bay Community College (SPR 20221859)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 25, 2022 SPR22/1859 Marcus Edward Vice President for Finance & Administration Massachusetts Bay Community College 50 Oakland Street Wellesley Hills, MA 02481 Dear Mr. Edward: I have received the petition of Mickey Long, Esq., on behalf of his client, Iron Workers Union Local 7, appealing the response of the Massachusetts Bay Community College (College) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 27, 2022, Attorney Long requested records pertaining to the New Health Science Center MDC project (Project) at the College: [1] All G. L. c. 149, § 27B certified payroll records submitted by any person or entity who provided or performed labor on the Project as the G. L. c. 149, (Section 44F(1)(a)-(d)) miscellaneous and ornamental iron contractor; [2] The filed sub-bid contract awarded to such contractor for it to perform that miscellaneous and ornamental iron work on the Project, include any extra corrective work that the contractor may have performed on the Project; and [3] All Section 27B records filed, if any, by Rose Steel of New Hampshire. On August 3, 2022, the College provided Attorney Long with a response which states, “[the College] has no public records responsive to your request. In response to the College on August 8th, Attorney Long questioned, “…why the awarding authority would not have such documents; the law clearly requires that you possess them for 3 years. Are they in your Project Manager’s or General Contractor’s possession or some other entity or person with whom your agency contracted?” In an August 9th response to Attorney Long the College asserted, “[t]he Division of Capital Asset Management and Maintenance (DCAMM) is responsible for capital planning, public building construction, facilities management, and real estate services for the Commonwealth and its records are not with the possession, custody or control of the College. Thus I refer you again to the College’s August 3, 2022 response to your public records request.” 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

Marcus Edward SPR22/1859 Page 2 August 25, 2022 As a result of the College’s August 3rd and August 9th responses, on August 11th, Attorney Long petitioned the Supervisor of Records, and this appeal was opened. In his petition, Attorney Long explains that there is no dispute as to whether the records are public. He notes, “[t]o resolve the matter, my client asked if the documents were simply not provided to DCAMM or the [College] (though contractors are statutorily required to submit them). But, both DCAMM and the [College] refused a responsive answer; my clients understand [the Public Records Law] does not require they answer.” After this appeal was opened, the College sent an August 15th email to both Attorney Long and this office, indicating, “[h]ello, [a]s we’ve said all along, we do not have the requested information.” The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on the College’s responses, it is unclear whether the records were not provided to the College by the Project Manager, General Contractor and/or Sub-contractors on the Project. It is also uncertain whether the College has a duty to request the records from the Project Manager, General Contractor and/or Sub-contractors. The College must clarify this matter. Conclusion Accordingly, the College is ordered to provide Attorney Long with a response 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Mickey Long, Esq.