Sakib A. Khan v. Pembroke, Town of - Office of the Town Clerk (SPR 20222279)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 24, 2022 SPR22/2279 Sabrina Chilcott Assistant Town Manager Town of Pembroke 100 Center Street Pembroke, MA 02359 Dear Ms. Chilcott: I have received the petition of Sakib Khan, Esq., of Khan Law PLLC, appealing the response of the Town of Pembroke (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 29, 2022, Attorney Khan requested: [A] copy of all statements of qualifications, required schedules and attachments submitted by prospective general bidders for [an identified project], with exception of the financial information specifically identified as not being a public records in 810 CMR 9.05(4)(b)(3), and all documents concerning evaluation of the same by the Town’s prequalification committee. On August 17, 2022, August 30, 2022, and September 26, 2022, the Town provided responses. Unsatisfied with the Town’s responses, Attorney Khan petitioned this office and this appeal, SPR22/2279, 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

Sabrina Chilcott SPR22/2279 Page 2 October 24, 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. 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 Town’s August 17th, August 30th, and September 26th Responses In its August 17, 2022 response, the Town provided the records responsive to the first part of the request. In its August 30, 2022 response, the Town stated that it is withholding the records responsive to the second part of the request pursuant to Exemption (h). In its September 26, 2022 response, the Town stated, “[t]he town has not entered a contract as of yet so there is no changes to status.” Current Appeal In his appeal, Attorney Khan states: Exemption (h) does not apply to the documents sought in the second category of my request…. Statements of qualifications, required schedules and attachments submitted by prospective general bidders in connection with the Project are not “proposals” or “bids” as contemplated by the exemption. Insofar as the Town seems to imply that the second category of my request is seeking “inter-agency or intra-agency communications made in connection with an evaluation or process for reviewing bids or proposals,” this implication is incorrect. The prequalification submissions are wholly separate and distinct from the proposals and bids that are only submitted after the prequalification process has concluded. Any communications made in connection with the prequalification process are not made in connection with the process for reviewing bids as contemplated by Exemption (h). Even assuming without admitting that the prequalification submissions were covered by Exemption (h), the duration of the exemption has lapsed. The prequalification submissions were opened, evaluated and decided on the Prequalification Committee meeting on June 30, 2022 and the bids were opened and evaluated on or about September 7, 2022….In fact, the Town tacitly admitted that the exemption would have lapsed if it applied by producing the contractors’ prequalification submissions. Exemption (h) Exemption (h) permits the withholding of:

Sabrina Chilcott SPR22/2279 Page 3 October 24, 2022 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. In its response, the Town further asserted: The second clause of Exemption (h) allows the records custodian to withhold any inter- agency or intra-agency communications that are made in the process of reviewing the bids and proposals; such as the scorecards being sought, prior to entering into negotiations with, or to award the contract to, a particular person. Upon review, I find that the Town has not met its burden to withhold the responsive records under Exemption (h). The Town must clarify how the records requested in part two of the records request, the “documents concerning the evaluation of the same by the Town’s prequalification committee[,]” are the types of records permitted to be withheld pursuant to Exemption (h). Further, the Town must clarify whether the bids are now open and also clarify the timeline to demonstrate that the records could be withheld under Exemption (h). Conclusion Accordingly, the Town is ordered to provide Attorney Khan with a response to his request 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. Attorney Khan may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Sabrina Chilcott SPR22/2279 Page 4 October 24, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Sakib Khan, Esq.