Courtney, Patrick v. Massachusetts College of Liberal Arts (SPR 20261307)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 24, 2026 SPR26/1307 Kelli Kozak Records Access Officer Massachusetts College of Liberal Arts 375 Church Street North Adams, MA 01247 Dear Ms. Kozak: I have received the petition of Patrick M. Courtney, of Foundation for Fair Contracting of Massachusetts, appealing the response of the Massachusetts College of Liberal Arts (College) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 1, 2026, Mr. Courtney requested the following: [A]ny and all documents and emails, between the architect, designer, GC, OPM, and Owner that relate to the NACC certification, as well as confirmation from the OWNER stating removing the NACC spec was fine on the MCLA Bowman Hall Project. The College responded on April 9, 2026. Unsatisfied with the College’s response, Mr. Courtney petitioned this office, and this appeal, SPR26/1307, 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 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

Kelli Kozak SPR26/1307 Page 2 April 24, 2026 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 College’s April 9th Response In its April 9, 2026 response, the College states the following: The NACC certification requirement was removed from the Bowman Hall project through a written addendum issued by the project architect, Dietz & Company, and posted on the project’s official online bidding platform during the bid period. Under the public bidding process governed by M.G.L. c. 149, changes to plans and specifications are made by written addendum issued to all bidders. The architect was authorized to issue addenda on behalf of the project. The addendum forms part of the official bid record governing the procurement. MCLA does not issue separate written approvals for individual addenda, and there is no separate document or email in the College’s records confirming removal of the NACC specification beyond the addendum itself. I also do not have access to correspondence exchanged solely between other project parties. Current Appeal In his appeal petition, Mr. Courtney argues the following: I am writing to file an appeal to your office on the grounds that the Massachusetts College of Liberal Arts does need to furnish documents that are in the custody of an OPM, GC or architect who are working as the owner’s agent on a publicly funded project. . . . That communications between owner’s agents regarding the NACC requirement are a public record and that it is the responsibility of the owner’s agent or the awarding authority to collect those documents and turn them over when requested through the public records law. Agency Relationship The College 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

Kelli Kozak SPR26/1307 Page 3 April 24, 2026 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, the custodian 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 it appears that an outside vendor may have acted as an agent on behalf of the College, it is unclear whether the records for the College’s agents were searched. As such, I find that the College must provide additional information detailing its search in order to determine if the College 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 College 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 further appeal the substantive nature of the College’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Patrick M. Courtney