Jeff S. Follett v. Framingham, City of (SPR 20250997)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 28, 2025 SPR25/0997 Paul J. Iversen City Records Access Officer City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Iversen: I have received the petition of Jeffrey S. Follett, Esq., of The Law Office of Jeffrey S. Follett, 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 February 17, 2025, Attorney Follett requested: [1] The “file for Parking Garage Design RFQ” referenced in the September 20, 2023 email from [an identified email address] to [an identified email address] with the subject line “FW: Evaluation Matrix for Parking Garage Design.” [2] To the extent not included in Request No. 1, Records that either constitute or expressly reference the City’s review of proposals submitted in response to Request for Qualifications# 8068. [3] To the extent not included in Request No. 1, Records that either constitute or expressly reference the City’s selection of a design team for the Project. [4] Records responding to, forwarding or expressly referencing the following emails: a. September 18, 2023 email from [an identified email address] to [an identified email address] with the subject line “RE: Designer Selection – Parking Grage [sic].” b. September 27, 2023 email from [an identified email address] on behalf of [an identified email address] to [an identified email address] with the subject line “FW: Parking Garage Design with Arrowstreet Team”. 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. Iversen SPR25/0997 Page 2 April 28, 2025 c. September 27, 2023 email from [an identified email address] to [an identified email address] and [an identified email address] with the subject line “RFQ#8068 PARKING GARAGE”. d. November 1, 2023 email from [an identified email address] to [an identified email address] with the subject line “FW: Framingham Garage-Contract, Scope & Fees”. e. November 20, 2023 email from [an identified email address] to [an identified email address] and [an identified email address] with the subject line “Parking Garage Design ‘Contract’”. f. November 28, 2023 email from [an identified email address] to [an identified email address] with the subject line “FW: Framingham Garage- Contract, Scope & Fees”. g. November 30, 2023 email from [an identified email address] to [an identified email address] with the subject line “RFQ#8068 City Parking Garage Design Bid”. [5] Notes and minutes from the meeting between [an identified individual] and [an identified individual] referenced in the November 30, 2023 email from [an identified email address] to [an identified email address] with the subject line “FW: RFQ# 8068 City Parking Garage Design Bid”. [6] Recordings of the following meetings for the Project attended by representatives of the City and Arrowstreet: a. September 19, 2023 b. September 27, 2023 c. October 4, 2023 d. October 16, 2023 e. October 18, 2023 f. October 24, 2023 g. November 1, 2023 h. November 8, 2023 i. November 14, 2023 j. November 16, 2023 [7] Records identifying who made the 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 dated December 1, 2023. [8] Records identifying the reasons why the City decided 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. [9] Records identifying who made the decision to “cancel” the “invitation to bid” with respect to the Project as stated in the letter from [an identified individual] to Arrowstreet dated December 18, 2023.

Paul J. Iversen SPR25/0997 Page 3 April 28, 2025 [10] Records identifying the reasons the City decided to “cancel” the “invitation to bid” with respect to the project as stated in a letter from [an identified individual] to Arrowstreet dated December 18, 2023. [11] Records constituting or expressly referencing the City’s transmittal or display of Arrowstreet’s renderings or other work product created for the Project to third parties, including but not limited to Metro West Credit Union (as indicated by the October 23, 2023 email from [an identified email address] to [an identified email address] with the subject line “RE: Parking Garage”) and “a geothermal vendor” (as indicated by the November 20, 2023 email from [an identified email address] to [an identified email address] with the subject line “Parking Garage Site Plan?”). [12] Agreements between the City and any other party attaching or expressly referencing Arrowstreet’s renderings or other work product created for the Project. [13] Records constituting or expressly referencing the City’s evaluation (including any economic valuation) of real property of Metro West Credit Union adjacent to or included in the Project site. [14] Records constituting communications between the City and Metro West Credit Union concerning the City’s potential or actual acquisition of real property of Metro West Credit Union adjacent to or included in the Project site. [15] Notes and minutes from meetings between the City and Metro West Credit Union concerning acquisition of Metro West Credit Union adjacent to or included in the Project site, including the “meeting next week” referred to in the October 20, 2023 email from [an identified email address] to [an identified email address] with the subject line “Parking Garage”. The City responded on March 4, 2025 and March 26, 2025. Unsatisfied with the City’s responses, Attorney Follett petitioned this office and this appeal, SPR25/0997, 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).

Paul J. Iversen SPR25/0997 Page 4 April 28, 2025 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 March 4th and March 26th Responses On March 4, 2025, the City stated, “[t]he City of Framingham is in receipt of your public records request dated February 17th, 2025. Responding to this request within 10 business days places an undue burden on the responsibilities of the City. As a result, the City is extending the due date for this request by 15 business days.” On March 26, 2025, the City provided “…records responsive to the portions of [Attorney Follett’s] request that are valid under the law (#’s 1-6, 11-13, 15) that have not already been provided.” Additionally, the City stated, “[t]he remaining numbered items do not constitute valid requests under the law... In accordance with G. L. c. 66, § 10(a)(i) and the Chawla decision… whereas you seek ‘Records identifying who made the decision…,’ ‘Records identifying the reasons why…,’ ‘Records identifying the reasons why the City decided…,’ and ‘Records constituting communications…’concerning’ certain topics, it is unclear with ‘sufficient particularity’ which records you seek.” In its response, the City cited Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. 1784CV02087, at 2 (January 23, 2019), in which 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.” 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). Current Appeal In his appeal, Attorney Follett states: [1] I seek confirmation from the City that it has produced all records responsive to

Paul J. Iversen SPR25/0997 Page 5 April 28, 2025 those of my requests that the City concedes are valid under the public records law, which seems highly unlikely… [2] I appeal the City’s determination that certain of my requests are invalid because the City cannot be expected to understand what records I am asking it to produce… Despite the specificity of my requests and indications in the record that additional responsive documents certainly must exist, the City did not produce a single additional document in response to my February 2024 [sic] requests (and… only produced recordings of two public meetings). The City also has never stated whether it is withholding any responsive documents on grounds that a statutory or common law exemption applies… With respect to Requests 7-10, I submit that it does not require the exercise of “fine judgment” to interpret requests seeking records that identify which Town personnel made specific decisions about a public project (Nos. 7 and 9) and that identify their reasons for making those decisions (Nos. 8 and 10)… I am not requesting the production of each and every record that might exist. All I am asking for is documentation sufficient to identify which public officials made certain decisions about a public project and why they made those decisions… with respect to Request No. 14, I submit that it does not require the exercise of “fine judgment” to interpret [the] request… Items 1, 2, 3, 4, 5, 6, 11, 12, 13 and 15 Based on the City’s March 26th response and the information provided in Attorney Follett’s appeal petition, it is unclear whether the City possesses additional records responsive to Items 1, 2, 3, 4, 5, 6, 11, 12, 13 and 15 of the request. The City must clarify this. 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). Items 7, 8, 9 and 10 Upon review of Items 7, 8, 9 and 10 of the request, Attorney Follett is advised that the duty to comply with requests for records extends only 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). Pursuant to the Public Records Law, a custodian 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). Where Items 7, 8, 9 and 10 of Attorney Follett’s request are seeking answers that require research into which public officials made certain decisions and why, I find that the City has no duty under the Public Records Law to respond to such requests.

Paul J. Iversen SPR25/0997 Page 6 April 28, 2025 Item 14 Regarding Item 14 of Attorney Follett’s request, I find that the language “[r]ecords constituting communications… concerning… potential or actual acquisition” 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 he is seeking. Once Attorney Follett has provided the needed clarification, the City must provide a response within 10 business days. This office encourages Attorney Follett and the City to continue communicating 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, the City is ordered to provide Attorney Follett with a response to his request, provided 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 Follett may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jeffrey S. Follett, Esq.