Jocelyn Jones v. Amherst, Town of - Office of the Town Clerk (SPR 20253514)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 11, 2025 SPR25/3514 Amber Martin Town Clerk Town of Amherst 4 Boltwood Avenue Amherst, MA 01002 Dear Ms. Martin: I have received the petition of Jocelyn B. Jones, Esq., of Segal Roitman, LLP, 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, Karen G. Courtney, of FFCM, 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. 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 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 SPR25/3514 Page 2 December 11, 2025 requesting copies of all employees listed on the CPRs licenses as required under MGL C146 section 81 and CMR 528. 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.” Previous Appeal This request was the subject of a previous appeal. See SPR25/2518 Determination of the Supervisor of Records (September 8, 2025). In my September 8th determination, I found it was unclear whether there is an agency relationship between the Town and CTA and ordered the Town to provide additional information regarding the scope of its relationship with CTA. An attorney for the Town responded on September 19, 2025 and October 27, 2025. Unsatisfied with the Town’s responses, Attorney Jones petitioned this office and this appeal, SPR25/3514, 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 Town’s September 19th and October 27th Responses In its September 19, 2025 response, the Town argued: The Town and CTA are parties to a construction contract… CTA is required to construct a new elementary school in accordance with the design plans and specifications prepared by the Town’s project architect... CTA is not a public

Amber Martin SPR25/3514 Page 3 December 11, 2025 agent for the purpose of G. L. c. 66, § 10(a)(ii), the Public Records Law, and documents in the possession of CTA’s subcontractors are not public records in the possession, custody, or control of the Town because: 1. Construction of the project is not a municipal service outsourced to CTA. 2. CTA is a private business and an independent contractor. 3. CTA has sole control over the means and methods of its construction work. 4. CTA’s subcontractors have no contractual relationship with the Town… Although school buildings are necessary for furnishing public education, construction of those buildings is not a municipal service. Said another way, the Town, like any municipality, is not in the business of constructing buildings. CTA’s construction of the project is, therefore, not a municipal service outsourced to CTA by the Town. Second, the Town does not have “extensive supervisory controls” over CTA, an independent contractor… CTA is solely responsible for, and has sole control over, the means, methods, techniques, sequences, and procedures, and for coordination of all portions of the work for the project. The Town does not direct, control, or supervise CTA or the work. CTA provides its own supervision through its project managers and superintendents. In addition, neither the Town’s project manager, nor the Town’s project architect, is required, allowed, or authorized to direct, control, or supervise CTA’s means, methods, techniques, sequences, and procedures of construction, or the coordination of any portion of CTA’s work. Furthermore, CTA’s business decision to procure a subcontractor to perform geothermal work for the project, rather than performing that work with its own employees, has nothing to do with the Town... The Town has no privity of contract with the subcontractor. Documents created by CTA and its subcontractor concerning their private contractual relationship are not documents created or received by the Town. Other than certified payrolls required by law to be created by a subcontractor (G.L. c.149, § 27B), the Town does not have access to documents created by the geothermal subcontractor… Consequently, CTA is not the Town’s public agent under the Public Records Law, and the only documents within the Town’s possession, custody, or control responsive to FFCM’s public records request have already been provided or made available to FFCM. In an email to this office and the Town on October 21, 205, Attorney Jones stated, “…the Town of Amherst has failed to comply with the order [to] provide Ms. Courtney with the requested records within 10 business days.”

Amber Martin SPR25/3514 Page 4 December 11, 2025 In its October 27, 2025 response, the Town reiterated its September 19, 2025 responses and stated, “Attorney Jones’ allegation is incorrect. The Town provided FFCM with all records responsive to its request.” Current Appeal In her appeal petition, Attorney Jones argued: CTA is in fact an agent for the Town and the fact that the Town may not possess or have custody over the records requested by the FFCM in no way absolves the Town of its obligation to comply with the law. The geothermal project at issue is a publicly funded project for Amherst, a government entity, and Amherst entered into a contract with CTA, a private corporation, to provide general contractor services on the project. Accordingly, the Town is bound to obtain from CTA and provide a copy to the FFCM of the requested records… Amherst’s refusal to take reasonable steps to obtain the public records requested by the FFCM violates its statutory obligations under the Public Records Law. Agency Relationship Please be 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. Sch. Comm. 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. In this case, where the Town states, “CTA is required to construct a new elementary school in accordance with the design plans and specifications prepared by the Town’s project architect,” it appears that CTA may have acted as an agent on behalf of the Town in procuring a geothermal subcontractor. Consequently, it is unclear whether the records of the Town’s agents were searched. As such, I find the Town must provide additional information detailing its search in order to determine if the Town has met is 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.

Amber Martin SPR25/3514 Page 5 December 11, 2025 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 Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jocelyn B. Jones, Esq. Karen G. Courtney