Jeff S. Follett v. Framingham, City of - City Clerk (SPR 20250316)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 4, 2025 SPR25/0316 Paul J. Iversen Records Access Officer City of Framingham 150 Concord Street, Room B-37 Framingham, MA 01702 Dear Mr. Iversen: I have received the petition of Jeffrey S. Follett, Esq., on behalf of Arrowstreet Inc., appealing the response of the City of Framingham (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 26, 2024, Attorney Follett sought the following records related to the City’s Request for Qualifications #8068: [1] All Records concerning negotiation of any actual or anticipated design services contract with Arrowstreet in connection with the Project[;] [2] All Records concerning services and documents provided by or through Arrowstreet in connection with the Project, including but not limited to all Records concerning the City’s use of or reliance upon such services and documents[;] [3] All Records concerning the City’s decision to “put all work on hold for now” with respect to the Project, as stated in an electronic message from [an identified individual] to Arrowstreet on December 1, 2023[;] [4] All Records concerning the City’s decision to “cancel” the “invitation to bid” relating to the Project, as stated in the letter from [an identified individual] to Arrowstreet dated December 18, 2023[;] [5] All Records concerning payment or nonpayment of Arrowstreet for services rendered in connection with the Project[;] [6] All Records concerning changes in the actual or anticipated scope of the Project since September 19, 2023[;] [7] All Records concerning any actual or potential procurement of a design services contract for the Project after December 18, 2023. 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

Paul J. Iverson SPR25/0316 Page 2 February 4, 2025 The City provided responses on January 3 and January 30, 2025. Unsatisfied with the responses, Attorney Follett petitioned this office and this appeal, SPR25/0316, 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 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 City’s January 3rd and January 30th Responses In its January 3, 2025 response, the City stated: … [Y]our request is excessively broad so as to not be a valid request under the law. However, previous responses to requests have been completed that likely contain most if not all of the records you are likely looking for. The records responsive to these requests can be downloaded at the links provided at the end of this response. The Supervisor of Public Records requires that public record requests must reasonably describe the records sought. G. L. c. 66, § 10(a)(i). In a recent Suffolk Superior Court case, the court found that “[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.” Chawla v. Dep't of Revenue, Suffolk. Sup. No. 1784CV02087, at 2 (January 23, 2019) … Your definition of “concerning” relates that “it shall be broadly construed to mean having any bearing upon, mentioning, discussing, directly or indirectly, the

Paul J. Iverson SPR25/0316 Page 3 February 4, 2025 matters, substantive content, persons, or entities set forth in this request.” You then request “all records concerning” seven different but related topics. Thus, your request is “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 ‘[concerning]’ the category of materials requested.” Chawla, at 2. In a January 15, 2025 email communication to the City, Attorney Follett objected to the City’s characterization of his request as excessively broad, and sought additional records responsive to Items 3, 4, 6, and 7 of his request. In its January 30, 2025 response, the City reiterated that Attorney Follett’s request was “… excessively broad and does not constitute a valid request under the law.” Current Appeal In his February 3, 2025 petition to this office, Attorney Follett disputed the City’s characterization of his request as failing to satisfy the standard in Chawla. Reasonable Description of Records Sought Please be aware, the Public Records Law states that a records access officer must furnish a copy of any public record “provided that the request reasonably describes the public record sought.” See G. L. c. 66, § 10(a)(i). In a recent case, 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. Dep’t of Revenue, Suffolk. Sup. No. l 784CV02087, 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.” As such, requests that seek “all records relating to…,” “all records concerning…,” or “all records regarding…” are not sufficiently particular as to satisfy the statutory standard of a request that “reasonably described the public record sought.” See G. L. c. 66, § 10(a)(i). Consistent with the decision in Chawla, I find that the language “All Records concerning” does not satisfy the statutory standard for a request that reasonably describes the public record sought. See Chawla, at 2. Attorney Follett may wish to provide clarification regarding the specific records she is seeking. Once Attorney Follett has provided the needed clarification, the City must provide a response within 10 business days.

Paul J. Iverson SPR25/0316 Page 4 February 4, 2025 This office encourages Attorney Follett and the City to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce the records sought more efficiently and affordably). Conclusion Accordingly, I will now consider this administrative appeal closed. If Attorney Follett is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies) Sincerely, Manza Arthur Supervisor of Records cc: Jeffrey S. Follett, Esq.