Karen G. Courtney v. Amherst, Town of - Office of the Town Clerk (SPR 20252518)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 8, 2025 SPR25/2518 Amber Martin Town Clerk Town of Amherst 4 Boltwood Avenue Amherst, MA 01002 Dear Ms. Martin: I have received the petition of Karen G. Courtney, on behalf of The Foundation for Fair Contracting of Massachusetts (FFCM), appealing the response of the Town of Amherst (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 15, 2025, Ms. Courtney made the following request: The FFCM is requesting all documents regarding the installation of a Geothermal System for the New Fort River Elementary School. We would like to know how this portion of the project was bid. How the contractor was chosen and was this work part of the HVAC Trade Contract? We are specifically requesting all documents regarding bidding, scope of work, specifications, qualifications and license requirements, certified payrolls, advertisements, contracts, memos, emails, invoices, etc. Following multiple clarifications and modifications of her request, the Town responded on July 24, 2025, July 29, 2025, July 30, 2025, and August 11, 2025. Unsatisfied with the Town’s responses, Ms. Courtney petitioned this office and this appeal, SPR25/2518, 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). 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

Amber Martin SPR25/2518 Page 2 September 8, 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 Town’s July 24th, July 29th, July 30th, and August 11th Responses On July 24, 2025, the Town sought clarification of Ms. Courtney’s request. In a reply on July 25, 2025, Ms. Courtney modified her request as follows: [1] I am looking to receive documents that resulted in the determination that 237000 is not part of the Fort River ES HVAC Trade Contract… Please provide the FFCM with the documents pertaining to that policy. [2] Secondly, I am requesting documents applicable to how the work in question, 23700 was procured. How was the contractor Allied Well Drilling qualified, (a requirement of MGL C149A). The FFCM would like to obtain copies of all advertisement, contracts, invoices etc. [3] Thirdly it is my understanding that the work specified in specification section 23700 is predominately work that requires a MA Pipefitters license. The FFCM is requesting copies of all employees listed on the CPRs licenses as required under MGL C146 section 81 and CMR 528. On July 29, 2025, the Town responded to each part of the modified request as follows: [1] This determination was made by the project designer and we have no documents other that the bidding documents and addenda that relate to this determination… [2] …[T]he work in question is included in the scope of work for the school construction contract that was executed with CTA Construction Managers on December 13, 2024 following a lengthy competitive bid and protest resolution process. This contract was procured in accordance with the requirements of MGL Chapter 149 not Chapter 149A. [3] The town does not have copies of pipefitters licenses for workers on the Fort River ES project.

Amber Martin SPR25/2518 Page 3 September 8, 2025 Subsequently on July 29, 2025, Ms. Courtney made a further modification to her request and stated, “I am requesting that the Town of Amherst collect all public records I requested from CTA regarding the geothermal work procured by CTA on behalf of the Town of Amherst for the above named project.” On July 30, 2025, the Town responded, “I do not believe that the town has the right to request this information from CTA nor do I believe that CTA has the obligation to provide this information if requested by the town.” Later the same day, Ms. Courtney asked the Town to reconsider its response. In its August 11, 2025 response, the Town provided Ms. Courtney with a link and stated: In addition to including questions that were not requests for documents, FFCM’s public records request is broad/unlimited in nature and would require the Town to undertake the role of investigator to ascertain any and all persons that may have records “regarding the installation of a Geothermal System.” See Friedman v. Division of Admin. Law Appeals, 103 Mass. App. Ct. 806, 808 (2024); Chawla v. Department of Revenue, No. 1784CV02087, at 2 (Suffolk. Sup. Ct. Jan. 23, 2019). Notwithstanding such issues, the Town Clerk and Special Projects Coordinator made good faith efforts to provide and facilitate the identification of records responsive to FFCM’s requests. As stated in the e-mails from the Special Projects Coordinator, the only records in the Town’s possession, custody, or control relating to the geothermal subcontract work for the project are (i) certified payrolls received by the Town as of the date of FFCM’s records request, copies of which have been provided; and (ii) the documents included in the Town’s contract with CTA for the project, which were offered to you previously and, for your convenience, can be found at the following link. Current Appeal In her appeal petition, Ms. Courtney stated: CTA is the General Contractor for the Fort River Elementary School Construction Project. We believe that all records in the possession of CTA are public records and therefore should be accessible to Amherst if requested… It is the FFCM’s position that in this case the records requested regarding the procurement and installation of the geothermal system at the Fort River Elementary School Project in the possession of CTA are public records and Amherst as the owner of the project is entitled to receive and forward the FFCM.

Amber Martin SPR25/2518 Page 4 September 8, 2025 Agency Relationship The Town is advised that 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). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Additionally, public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, he or she has a duty to make the public records available in a location convenient to the general public for inspection and copying. Based on the information provided in the appeal petition and the Town’s responses, it is unclear whether there is an agency relationship between the Town and CTA. As such, I find that the Town must provide additional information regarding the scope of its relationship with CTA in order to determine whether it has met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody, or control of the custodian of records at the time of the request. Conclusion Accordingly, the Town is ordered to provide Ms. Courtney with a response to the 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. Ms. Courtney 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: Karen G. Courtney