Chris P. Courtney v. Maynard, Town of - Office of the Town Clerk (SPR 20253615)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 19, 2025 SPR25/3615 Melissa L. Pelletier Town Clerk Town of Maynard 195 Main Street Maynard, MA 01754 Dear Ms. Pelletier: I have received the petition of Chris P. Courtney, on behalf of The Foundation for Fair Contracting of Massachusetts (FFCM), appealing the response of the Town of Maynard (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 18, 2025, Mr. Courtney requested, “a copy of the contract between CTA Construction and the Food Service Equipment Installer/Vendor, the Bid Instructions and Scope of work for Bid package No. 11 Food Service Equipment, and Scope Review Meeting Notes and Clarification for Food Service Equipment for the Green Meadow Elementary School Project…” The Town responded on December 3, 2025. Unsatisfied with the Town’s response, Mr. Courtney petitioned this office and this appeal, SPR25/3615, 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. 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

Melissa L. Pelletier SPR25/3615 Page 2 December 19, 2025 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 December 3rd Response In its December 3, 2025 response, regarding the request for “Bid Instructions and Scope of Work for Bid Package No. 11 Food Service Equipment, and Scope Review Meeting Notes and Clarifications for Food Service Equipment,” the Town stated: …the requested documents do not exist. However, attached to this correspondence as Exhibits A and B, please find the Food Service Vendor Drawings and Specifications, respectively… [W]e have provided you with the closest type of documentation that exists for a project under M.G.L. c. 149. If the attached documents do not satisfy your initial request, we instruct you to submit a new request with additional information that reasonably describes the documents in sufficient specificity for the Town to provide them to you. Regarding the request for the “contract between CTA Construction and Food Service Equipment Installer/Vendor,” the Town stated: [1] The Town does not care for or have custody of the records, nor are they entitled to copies of the records, because they were created by CTA, a private entity, as part of a private business transaction to which the Town was not a party. [2] The Town does not have control over the records because CTA is not an agent of the Town. A. CTA is not performing a public duty. B. The Town has no control over CTA’s contract with the Vendor… [T]he Town contracts with CTA to complete the Project, but their contract does not dictate which aspects of the work must be completed by CTA or that which can be contracted out to other parties, such as the Vendor. As it pertains to CTA and the Vendor’s agreement, the Town was not authorized to exercise any degree of control over the vendor selection process or negotiation of the contract… [B]ecause CTA is not undertaking a public obligation and the Town doesn’t have the right to exercise any degree of control over CTA regarding their contract with the Vendor, an agency relationship has not been established. Current Appeal In his appeal petition, Mr. Courtney stated, “[t]he use of a construction manager or vendor structure on the Green Meadow project does not remove responsive records from the scope of the Public Records Law or relieve the custodian of the responsibility to obtain and disclose them.”

Melissa L. Pelletier SPR25/3615 Page 3 December 19, 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. 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 that it “contracts with CTA to complete the Project,” it appears that CTA may have acted as an agent on behalf of the Town in procuring a vendor 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. Conclusion Accordingly, the Town 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 (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. Mr. 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: Chris P. Courtney Allison Valton, Esq.