Brian Cook v. Massachusetts Convention Center Authority (SPR 20253007)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 24, 2025 SPR25/3007 Kevin P. Scanlon, Esq. General Counsel Massachusetts Convention Center Authority 415 Summer Street Boston MA 02210 Dear Attorney Scanlon: I have received the petition of Brian Cook, Esq. appealing the response of the Massachusetts Convention Center Authority (Authority/MCCA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 22, 2025, Attorney Cook requested the following: Public Records, as defined in M. G. L. Chapter 4, Section 7, pertaining to the Requests for Proposal for Public Relations and Strategic Communications Consultation (“PRSCC RFP”) and dated between July 7, 2025 and the date of this letter. Please produce: (i) Public Records sufficient to identify all recipients of the PRSCC RFP (“RFP Recipients”); (ii) All Communications or other Public Records with RFP Recipients, including but not limited to any and all submissions in response to the RFP Recipients and any communication reflecting a decision by an RFP Recipient not to submit in response to the RFP; (iii) Communications or other records pertaining to the termination of the PRSCC RFP; (iv) Communications or other records within the Massachusetts Convention Center Authority and/or its Board of Directors concerning or relating to the PRSCC RFPs; (v) Communications or other records with other agencies or offices of the Commonwealth concerning or relating to the PRSCC RFPs; (vi) Notes or other records from or concerning meetings internal to the Massachusetts Convention Center Authority and/or its Board of Directors concerning or relating to the PRSCC RFPs; (vii) Notes or other records from or concerning meetings with other agencies or 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

Kevin P. Scanlon, Esq. SPR25/3007 Page 2 October 24, 2025 offices of the Commonwealth concerning or relating to the PRSCC RFPs; and (viii) Notes or other records from or concerning the responses or proposals submitted to the PRSCC RFP. (ix) Notes or other records regarding the evaluations and ratings of PRSCC RFPs that met the submission requirements set forth in Section 9.1 of the Request for Proposals notice dated July 7, 2025. The Authority responded on September 8, September 19, and October 3, 2025. Unsatisfied with the Authority’s response, Attorney Cook petitioned this office, and this appeal, SPR25/3007, was opened as a result. Subsequent to the opening of this appeal, the Authority provided a further response to this office and Attorney Cook on October 21, 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. 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. Current Appeal In his appeal petition, Attorney Cook seeks the following: 1. A determination that any and all proposals received in response to the PRSCC RFP and the register of all firms submitting such proposals are public records that must be disclosed and are not subject to an exemption; 2. That the deliberative process exemption (Exemption (d)) does not apply because the PRSCC RFP was cancelled and MCCA has admitted that no deliberation was undertaken with respect to the PRSCC RFP. 3. That MCCA must otherwise conduct a document-by-document review of any documents responsive to my request, produce all records that are not subject to

Kevin P. Scanlon, Esq. SPR25/3007 Page 3 October 24, 2025 a valid exemption, and provide redacted copies of any documents containing both exempt and non-exempt information. 4. That MCCA must provide specific justification for each claimed exemption, tied to particular documents or categories of documents. The Authority’s Responses In its September 8, September 19, and October 3, 2025 responses, the Authority provides numerous responsive records, and cites Exemptions (d) and (h) of the Public Records law for withholding others. See G. L. c. 4, § 7(26)(d), (h). In its October 21, 2025 response, the Authority further elaborates on its claims under Exemptions (d) and (h) for withholding responsive records. In its September 8th response, the Authority explains the following: [T]he PRSCC RFP was canceled on August 21, 2025 but the procurement for Public Relations and Strategic Communications Consultation is still open. As such, at this time, any documents related to that procurement are exempt under G.L. c. 4, sec. 7(26)([h]) and G.L. c. 4. Sec. 7(26)(d). To the extent your request seeks documents protected by the Attorney/Client Privilege and Work Product doctrine, those records are also exempt. Publicly available information about the PRSCC RFP is available on the MCCA’s website at the following link. This link provides information about which vendors viewed the RFP. In addition, when any notices and/or addendums are sent pertaining to this RFP, all of the vendors listed received a copy of that notice and/or addendum. The MCCA is committed to a fair, open and transparent procurement process. The MCCA anticipates that a reformulated solicitation of proposals will be issued in this procurement in the near future. In its September 19, 2025 response, the Authority produced some responsive records, and explained the following: First . . . the MCCA’s effort to procure public relations and strategic communications assistance is ongoing. While a solicitation that the MCCA issued as part of the procurement process has been canceled, the MCCA is still in the midst of a competitive process to secure the public relations and strategic communications assistance it needs. As the public records law recognizes, the MCCA must control access to some information while the procurement is underway in order to preserve fair competition and ensure that the MCCA receives the best value for the public funds it expends. Second . . . the MCCA provided publicly available documents responsive to your

Kevin P. Scanlon, Esq. SPR25/3007 Page 4 October 24, 2025 requests through a link identified in my previous letter. Specifically, your initial public records request set forth nine (9) categories of documents. Publicly available documents responsive to Request Nos. I, II, and III were provided to you via a link to the MCCA’s public website. . . . As to Requests Nos. viii and ix, since the solicitation was cancelled, none of the responses were opened and no evaluation or rating occurred. As such, there are no responsive documents. Since this procurement is still open, and for the reasons set forth in this letter and my September 8th letter, the MCCA asserts that it does not owe you any additional documents at this time. In its October 21, 2025 response, the Authority further clarifies that “the records MCCA withheld consist of: (1) the unopened proposals themselves; and (2) internal documents concerning the ongoing procurement process.” Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. In its October 21st response, under Exemption (d), the Authority argues the following:

Kevin P. Scanlon, Esq. SPR25/3007 Page 5 October 24, 2025 To the extent that the Appellant seeks internal MCCA communications regarding the decision-making process for the RFP revision (Requests iv-vii), the deliberative process exemption, M.G.L. c. 4, § 7(26)(d) applies. M.G.L. c. 4, § 7(26)(d) exempts: “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based.” Appellant claims, without knowledge and without citing any authority, that “there is no incomplete deliberative process ongoing with respect to the PRSCC RFP or submissions in response thereto…” Appeal at 3. Appellant is wrong. As explained above, the MCCA concluded—during the pendency of the RFP process—that the initial RFP required comprehensive revision. Those revisions are still actively being discussed and implemented. Therefore, the records Appellant seeks are inherently pre-decisional and deliberative in nature. Releasing such internal documents would necessarily chill the candid and effective internal deliberation required for the MCCA to determine its official course of action (the issuance of the new RFP) and secure a favorable financial outcome for the Commonwealth. The Supreme Judicial Court has held that the exemption protects “recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Suffolk Const. Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444, 457 (2007). As these internal communications inform an ongoing, future official action (i.e. the revised RFP), they are protected. See id. . . . The MCCA is actively engaged in a competitive procurement process to secure necessary public relations and strategic communications consulting services. Releasing the proposals or the pre-decisional communications at this stage would irreparably harm the integrity of that process and expose confidential and proprietary vendor information. Exemption (h) Exemption (h) permits the withholding of: 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).

Kevin P. Scanlon, Esq. SPR25/3007 Page 6 October 24, 2025 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. In its October 3, 2025 response, under Exemption (h), the Authority argues the following: Exemption (h) of the public records statute allows a procuring agency to withhold responses it receives in answer to a request for proposals while the procuring agency continues to solicit additional responses. The purpose of the exemption is to protect the integrity of the bidding process by ensuring a level playing field between early proposers, who submit when the process is just beginning, and late proposers who do not submit until near the end. See A Guide to the Massachusetts Public Records Law, published by Secretary of State William Francis Galvin, at 23 (updated December 2022). Without exemption (h), a respondent could gain an unfair competitive advantage by requesting and reviewing proposals submitted by early proposers, using information gained from the review to write and submit its own proposal later on. The MCCA is currently facing this procurement challenge. The MCCA began, but has not yet completed, the process of procuring public relations and strategic communications consulting services. The MCCA issued an initial solicitation and received some responses. Before opening or reading the responses, however, the MCCA determined that its solicitation needed to be revised. The MCCA will continue accepting additional proposals once the revised solicitation is issued. As a result, the MCCA must keep the early proposals confidential while the procurement process continues. Exemption (h) allows the MCCA to do so, authorizing the MCCA to withhold the proposals it has already received until the MCCA has finished accepting proposals all together. If the MCCA were to do otherwise – releasing early proposals while continuing to solicit additional proposals for public relations and strategic communications consultant services – then later proposers would gain an unfair competitive advantage. The MCCA is doing its best to prevent this unfair result by applying exemption (h) as it was intended. In its October 21st response, the Authority further explains the following: Importantly, the time for MCCA to receive proposals for public relations and strategic communications services has not yet expired. As the MCCA has repeatedly explained to Mr. Cook, the MCCA is still in the midst of soliciting proposals for these essential services. MCCA has almost finished revising the

Kevin P. Scanlon, Esq. SPR25/3007 Page 7 October 24, 2025 RFP document and, as MCCA has repeatedly stated, will resume accepting proposals once the reformulated RFP is released in the near future. The gathering of proposals is merely paused and not concluded. Therefore, Mr. Cook is wrong in his assertion that “the process is over.” . . . Appellant concedes, as he must, that Exemption (h) protects proposals from disclosure for a period of time. Appellant argues nonetheless that the exemption’s protection has ended in this case. To do so, Appellant focuses very narrowly on the date the RFP initially set as a submission deadline, July 30, 2025. Appellant’s interpretation fails because it ignores relevant subsequent events. The protections of Exemption (h) did not end on July 30, 2025, because the MCCA did not open proposals and begin an evaluation on July 30, 2025, as the RFP initially contemplated. Instead, the MCCA canceled the terms of the solicitation, including the July 30, 2025, deadline, and announced that it would continue to solicit additional proposals using a revised RFP once the revisions were completed. The MCCA’s procurement of public relations and strategic communication services remains active and ongoing. The “time for . . . proposals” therefore continues as well. Because [t]he MCCA is still in the process of soliciting proposals, the protections of Exemption (h) continue to apply and protect the proposals MCCA has received thus far from production for now. Appellant’s interpretation of Exemption (h) should also be rejected because it ignores the fundamental purpose of the statute. The Supreme Judicial Court has repeatedly emphasized that one of the purposes of competitive bidding statutes is “to establish an open and honest procedure for competition for public contracts.” Fordyce v. Town of Hanover, 457 Mass. 248, 259 (2010); see also John T. Callahan & Sons, Inc. v. City of Malden, 430 Mass. 124, 128 (1999). The core objective of Exemption (h) is to ensure fair competition and prevent unfair advantage by ensuring a level playing field between early proposers, who submit when the process is just beginning, and late proposers who do not submit until near the end. See A Guide to the Massachusetts Public Records Law, published by Secretary of State William Francis Galvin, at 23 (updated December 2022). Without exemption (h), a respondent could gain a competitive advantage by requesting and reviewing proposals submitted by early proposers, using information gained from the review to write and submit its own proposal later on. Appellant’s interpretation, conversely, would allow a competitor (presumably including Appellant’s client) to gain an unfair competitive advantage in this procurement by requesting and reviewing proposals already submitted, then using the information gained to later write and submit its own proposal once MCCA issues the revised RFP—after having had the opportunity to study the strategic approaches, pricing models, and methodologies of their competitors from the RFP’s first round. Appellants’ interpretation would thus bring about precisely the result the statute aims to prevent. In this case, where the Authority has explained that it is withholding “the unopened

Kevin P. Scanlon, Esq. SPR25/3007 Page 8 October 24, 2025 proposals themselves” along with “internal documents concerning the ongoing procurement process,” and has explained that the time for the receipt of proposals has not yet expired, I find the Authority has met its burden to withhold the responsive records pursuant to Exemption (h) of the Public Records Law at this time. Please be advised that the expiration of the time for the receipt of bids or proposals could impact the applicability of Exemption (h) to these records. See G. L. c. 4, § 7(26)(h). Where the Authority has met its burden to withhold the records under Exemption (h), I find it unnecessary to opine on the Authority’s claims for withholding the records under Exemption (d). Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney Cook 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: Brian Cook, Esq.