Jeremy Silverfine v. Southborough, Town of (SPR 20241696)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 21, 2024 SPR24/1696 Mark J. Purple Town Administrator Town of Southborough 17 Common Street Southborough, MA 01772 Dear Mr. Purple: I have received the petition Jeremy Silverfine, Esq. appealing the response of the Town of Southborough (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 20, 2024, Attorney Silverfine requested: Copies of any and all Wi-Fi, I.T. (Information Technology), I.T. services records and maintenance for those services, including computer software and hardware, and any consulting agreements having to do with these computer services for the Town including the other stated items in this request pursuant to M.G.L. c.30B. This should include any agreements or contracts done through barter or loan agreement(s) with a loan to own or lease. [For all items below, regarding the Town’s WiFi, I.T. technology, I.T. services and maintenance service, from 2014 to present… I ask that the records produced be certified]: [1] Copies of any computer hardware agreement purchases…[;] [2] Copies of any Wi-Fi, I.T. technology, I.T. services and maintenance purchases…[;] [3] Copies of any computer software agreements and purchases…[;] [4] Copies of any Integrated IT solution, I.T. security, Cloud services, Hybrid infrastructure for cloud and all other I.T. digital contracts…[;] [5] Copies of all written contracts…[;] [6] Copies of all written quotes from vendors…[;] [7] Copies of all written purchase description for vendors…[;] [8] Copies of all notices published for bids from vendors….[;] [9] Copies of all newspaper notices for bids from vendors…[;] [10] Copies of all notices besides newspaper notices for bids for vendors…[;] 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

James Hegarty SPR24/1696 Page 2 June 21, 2024 [11] Copies of all notices in the Goods and Services Bulletin published by the Secretary of the Commonwealth…[;] [12] Copies of any and all communications with vendors relative to Invitations to Bid (IFB)…[;] [13] Copies of the list of all vendors that received the IFB…[;] [14] Copies of any addendums to IFB…[;] [15] Copies of the list of any vendors that received addendums to IFB…[;] [16] Copies of the list of all vendors acknowledgment to the receipt of the addendums to IFB…[;] [17] Copies of any extensions of the bid due date…[;] [18] Any information, data, records on a reverse auction…[;] [19] Any list of any registered bidders on a reverse auction…[;] [20] The opening dates and closing dates for the reverse bidding…[;] [21] Any advertising for the reverse bidding…[;] [22] The terms and conditions of the reverse bidding…[;] [23] The register of the bids received… including the date and time of each bid received…[;] [24] The list of bidders and the receipts for their packages sent in…[;] [25] A list of any modifications or withdrawals to the bids…[;] [26] A list of any late bids…[;] [27] A list of any bid corrections…[;] [28] A list of any overlooked bids…[;] [29] Any notifications of late, bid corrections, or overlooked bids…[;] [30] Notices that the bids were opened in public…[;] [31] Meeting minutes where the bid was opened…[;] [32] The statement listing the names of all bidders, the amount of the bids and the statement that the list is a complete and accurate list of the bids opened in the witnesses’ presence…[;] [33] Any approval of the bid…[;] [34] Any cancellation or rejection of the bids and the stated reason…[;] [35] Any procurement files on the bids…[;] [36] Any written contracts…[;] [37] The IFB and any amendments…[;] [38] Any written justification for the use of propriety specification…[;] [39] The public notice, including a copy of the newspaper advertisement and the posting on the COMMBUYS system…[;] [40] The Goods and Services Bulletin notice…[;] [41] The record of the bid opening…[;] [42] All bids received, including the non-collusion forms…[;] [43] Any bid corrections, modifications, withdrawals and notices of bid corrections, modifications or withdrawals…[;] [44] Any notices of bid rejections or cancellations…[;] [45] The notice of award…[;] [46] The executed contract…[;] [47] Any Request for Proposal (RFP), including purchase description or scope of

James Hegarty SPR24/1696 Page 3 June 21, 2024 services…[;] [48] Any plan for providing the supplies or services…[;] [49] Evaluation criteria, including quality requirements, comparative evaluation criteria and lowest price…[;] [50] The Rule for award…[;] [51] Any documents incorporated by reference…[;] [52] The contract terms and conditions…[;] [53] The standard forms…[;] [54] The requirements for submitting proposals…[;] [55] The written rational (sic) for the decision to use an RFP…[;] [56] The RFP, including any amendments…[;] [57] The justification for using proprietary specification…[;] [58] The public notices including a copy of the newspaper advertisement and the posting in the COMMBUYS system…[;] [59] The Goods and Services Bulletin notice if the contract value was more than 100K…[;] [60] The register of proposals…[;] [61] All proposals received, including the non-collusion forms…[;] [62] Any proposal corrections, modifications, withdrawals, as well as any notices of proposals, corrections, modifications or withdrawals…[;] [63] Any notices of proposal rejections or procurement cancellation…[;] [64] The individual and composite proposal ratings and written explanations…[;] [65] The written rational for the contract award, if the contract was not awarded to the proposal submitting the lowest price…[;] [66] Any written rationale for omitting from the contract and of the evaluators’ recommended revisions to the plan for providing supplies or services…[;] [67] Any revisions to the plan for providing the supplies or services…[;] [68] The notice of the contract award…[; and] [69] The executive contract…[;] The Town responded on June 4, 2024. Unsatisfied with the Town’s response, Attorney Silverfine petitioned this office and this appeal, SPR24/1696, 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. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of

James Hegarty SPR24/1696 Page 4 June 21, 2024 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 Town’s June 4th response In its June 4, 2024 response, the Town asserted: Requests Nos. 1-3 and 52: …there are no written contracts between the [Town] and Fortinet. Computer Discount Warehouse (CDW) forwards invoices to the Town for Fortinet services. Copies of invoices from CDW were previously provided to you. Requests Nos. 4-51 and 53-69: The Town has no documents responsive to these requests. Current Appeal In his appeal, Attorney Silverfine states: It is clear that the Town should have records, including documents it is required to maintain under M.G.L. c. 30B and from transactions it has made with CDW. For instance, the Town has had the following transactions with CDW over the past year or so and yet no records were provided by the Town…. Based upon a telephone conference between a staff attorney of the Public Records Division and a representative of the Town, the Town confirmed that the responsive CDW records, specifically invoices, have previously been provided to Attorney Silverfine in response to a separate public records request. Further, the Town confirmed that there are no additional responsive records. Please note, 950 C.M.R. 32.07(1)(a) states that “ upon request, a requester shall be entitled to receive in hand, by mail, by facsimile or electronically one copy of a public record or any desired portion of a public record”. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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).

James Hegarty SPR24/1696 Page 5 June 21, 2024 Conclusion Accordingly, where the Town has confirmed that it previously provided the invoices responsive to Items 1-3 and 52 of the request, and that it does not possesses any additional records responsive to other Items of the request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Attorney Silverfine is unsatisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Jeremy Silverfine, Esq.