Michael Meyers v. Andover, Town of (SPR 20240637)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 14, 2024 SPR24/0637 Kathryn L. Forina Records Access Officer Town of Andover 36 Bartlet Street Andover, MA 01810 Dear Ms. Forina: I have received the petition of Michael Meyers appealing the response of the Town of Andover (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 1, 2024, under the subject line “PRR for 7 B RFQ Deliverables,” Mr. Meyers requested the following: [A]ll responsive records related to the following: [1.] Scope for the RFQ for the design team and OPM [2.] RFQ for each [3.] List of bidders to be invited [4.] Responses to date [5.] Selection criteria [6.] Contract template [7.] Review team members [8.] Time line for selection [9.] Timeline for Feasibility vote by the town voters [10.] Please clarify [an individual]’s comments during the January 11, 2024 PTBAC meeting that the scope need to be approved by the School Committee. The Town responded on February 15, 2024, indicating it did not possess responsive records. Unsatisfied with the Town’s response, Mr. Myers appealed, and this case was opened as a result. Subsequent to the opening of this appeal, the Town provided a supplemental response to Mr. Meyers and this office on March 5, 2024. 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

Kathryn L. Forina SPR24/0637 Page 2 March 14, 2024 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 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. Current Appeal In his appeal petition, Mr. Meyers contends the following points: 1. On January 11, 2008 the Permanent Town Building Committee (PTBAC) conducted a meeting relative to the Andover High School Interim Approach (a/k/a 7B) approved by the town voters on November 20, 2022. 2. At that 1/11/24 meeting, the town manager spoke of the timetable, committee members, project scope, RFQ budget and other critical path matters. 3. On February 1, [Mr. Meyers] requested the responsive records related to his discussion points. 4. On February 15, all requested materials were denied by the town. 5. Subsequent to that denial, the PTBAC published its 1/11/24 meeting minutes. The meeting minutes referenced the status of many of the issues [Mr. Meyers] requested... These include a reference by name only to five (5) status slides on the information [he] requested. These slides were not displayed at the meeting. 6. In addition, the ... video transmittal of the next meeting on 2/8/24 also references the 2024 timeline and final scope approval slated for a 2/29/24 school committee meeting. The Town’s February 15th and March 5th Responses In its February 15, 2024 response, the Town states the following: The Request for Qualifications has not yet been drafted. As such, no documents

Kathryn L. Forina SPR24/0637 Page 3 March 14, 2024 exist to satisfy requests no. 1 through 9. Regarding request no. 10, this is not a request for public records. Additionally, in its March 5, 2024 response, the Town further explains the following: The Town interpreted this request to be regarding Article 7B of the Town’s November 20, 2023, Special Town Meeting which appropriated funds for the purpose of purchasing services and materials related to the Andover High School Renovation Schematic Design. The body of the email then listed nine items related to a Request for Qualifications as well as a 10th item[.] . . . The Town of Andover interpreted Mr. Meyers’s email as a request to provide him with a copy of a Request for Qualifications for an Andover High School Renovation Schematic Design. This document has not been written, and therefore no such record exists. [The Town’s] response to Mr. Meyers was made in good faith, however based on his appeal to [the Supervisor’s] office it appears that Mr. Meyers was requesting documents other than what [the Town] interpreted the request to be. The Town of Andover would be happy to provide all documents in the possession of the town that Mr. Meyers is seeking if he would be willing to modify the scope of his request to clarify exactly what records he is seeking. This will enable the Town to better identify all documents that meet Mr. Meyers’s request more efficiently and affordably. Reasonable Description of Records Sought A request for records must reasonably describe the records sought. See G. L. c. 66, § 10(a)(i). In Chawla, the Superior Court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. 1784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to the category of materials requested, will not satisfy this statutory standard.” (emphasis in original). Id. Based on Mr. Meyer’s original written requests for “records related to” a document which the Town states has not yet been drafted, and in conjunction with the information provided in the Town’s February 15th and March 5th responses, I find it is unclear what specific records Mr. Meyers is seeking. Consequently, Mr. Meyers may wish to clarify his written request in order to reasonably describe the requested records. See G. L. c. 66, § 10(a)(i) (the request must reasonably describe the public record sought).

Kathryn L. Forina SPR24/0637 Page 4 March 14, 2024 Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Meyers wishes to submit an additional public records request to the Town, and is unsatisfied with the response, he may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Michael Meyers