Kristian P. Courtney v. Gloucester, City of - City Clerk (SPR 20251425)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 30, 2025 SPR25/1425 Grace E. Poirier City Clerk City of Gloucester 9 Dale Avenue Gloucester, MA 01930 Dear Ms. Poirier: I have received the petition of Kristian P. Courtney, of The Foundation for Fair Contracting of Massachusetts, appealing the response of the City of Gloucester (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 30, 2025, Mr. Courtney requested the following records related to “RFQ/CM: WPCF Improvements and Secondary Upgrades 25058 (A) – CMAR for WPCF Secondary Treatment and Facility Gloucester Upgrades, which was publicly opened on December 13, 2024”: [1] The list of all CM at-Risk applicants and responses submitted. [2] Copies of prequalification evaluations, scoring sheets, or internal assessments by the prequalification committee. [3] Any documentation indicating whether fewer than three CMs were prequalified. [4] Any internal communications or determinations on whether the City intends to: [a] Re-advertise the CM at-Risk RFQ; [b] Or proceed under M.G.L. c. 149, §§ 44A– 44J, in accordance with M.G.L. c. 149A §5(f). [5] Copies of any trade contractor bids submitted to date and any communications with trade contractors regarding the procurement status, bid process, or award expectations for RFQ/CM 25058 (A). The City responded on May 14, 2025. Unsatisfied with the response, Mr. Courtney petitioned this office and this appeal, SPR25/1425, was opened as a result. 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

Grace Poirier SPR25/1425 Page 2 May 30, 2025 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 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 May 14th Responses In its initial May 14, 2025 response, the City informed Mr. Courtney that it was withholding responsive records pursuant to Exemption (h) of the Public Records Law. The City further stated that it was not required to answer questions or create records in response to a public records request. In its subsequent May 14, 2025 response, the City stated that there were no documents responsive to the request. Current Appeal In his May 20, 2025 petition to this office, Mr. Courtney contended that responsive records were likely to exist, and sought “… a written response confirming whether three or more CMs were prequalified. If not, please clarify whether the City intends to re-advertise or proceed under Chapter 149.” In an email communication to this office on May 22, 2025, the City confirmed that it was withholding responsive records pursuant to Exemption (h) and declined to provide a written response confirming whether three or more “CMs” were prequalified. Exemption (h) Exemption (h) permits the withholding of:

Grace Poirier SPR25/1425 Page 3 May 30, 2025 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. The City is advised that the first clause of Exemption (h) permits the withholding of proposals and bids “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.” Upon review, it is unclear whether the bids have been opened publicly or whether the time for the receipt of bids has expired. The City must clarify this matter. Conclusion Accordingly, the City is ordered to provide Mr. Courtney with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Mr. Courtney may appeal the substantive nature of the City’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Kristian P. Courtney Rocco DeFilippis, Esq.