Section Review

A Look at the Massachusetts Public Records Law

Alan N. Cote is Supervisor of Records for the commonwealth of Massachusetts and the director of the Public Records Division.

The Massachusetts Public Records Law broadly defines "public records" to include all documentary materials or data, regardless of physical form or characteristics, which are made or received by any officer or employee of any Massachusetts governmental entity, including any state, regional or local authority.

Here is a brief overview of the law (Mass. General Laws Chapter 4, Section 7 (26), and Chapter 66, Section 10). More detailed information, such as the text of the public records statutes, including the 12 specific exemptions, is on-line at www.state.ma.us/sec/pre along with bulletins issued by the Supervisor of Public Records in the Office of Secretary of the Commonwealth William Francis Galvin.

The law presumes that all records including records that are created, received and maintained electronically are "public records" and are "open" to the public. Any person has an absolute right of access to public information including the right to inspect and copy records upon payment of a fee. They may make a request in person or by mail, orally or in writing. A requester need not specifically identify a particular record: a reasonable description suffices, and the person responsible for maintaining a record, known as a records custodian, is expected to use his or her superior knowledge of the records to assist the person requesting them.

Records custodians must respond to requests as soon as possible and always within ten calendar days including Sundays and holidays. The response must either provide the material or deny the request. The denial must state the specific legal basis for doing so and must inform the requestor of the right to appeal to the Supervisor of Public Records. The orders issued by the supervisor after an investigation are enforceable in court by the attorney general or the appropriate district attorney.

Custodians need only produce records that are in existence at the time of the request; they are not obliged to create a record or to honor prospective requests. Nor is a custodian required to create a program to provide records in a format the requestor desires. The law forbids custodians from asking about the requestor's status or motivation in seeking a record.

A fee may be charged to cover the costs of complying with a request, though a custodian is encouraged, but not mandated, to waive fees where disclosure is in the public interest. The custodian may charge for "searching" and "segregating" exempt information from non-exempt information, a charge based on the hourly rate of the lowest paid employee who is capable of performing the task. "Search time" is limited to the time needed to locate a requested record, pull it from the files, copy it and return it to the files. "Segregation time" is limited to the time needed to delete exempt items from a requested record. A maximum charge for copying is 20 cents per page. The charge for retrieving an electronic record is 50 cents per page regardless of the amount of time used to generate the printout.

The 12 exemptions to disclosure are strictly and narrowly construed, both by the Supervisor of Public Records and the Massachusetts courts. Where exempt information is mixed with the non-exempt information, non-exempt portions are subject to disclosure once the exempt portions are deleted. The 12 exemptions are spelled out in General Laws Chapter 4, Section 7 (26).

Those exemptions are: records specifically or implicitly exempt by statute (examples of these are on the Web site); internal personnel rules and practices only as necessary for proper functioning of a governmental unit; personnel or medical files and individual data that would, if released, constitute an unwarranted invasion of privacy; interagency memoranda and letters related to developing policy positions, but not completed studies or reports; personal notes and material of an employee that are not part of a governmental file; investigatory materials compiled by law enforcement personnel, the disclosure of which would prejudice effective law enforcement; confidential trade secrets, commercial or financial information provided to a public agency, but not information submitted to the agency as required by law; bids and contract proposals until the bids are opened and time for receipts of all bids and proposals has expired; appraisals of real property to be acquired, but only until an agreement is reached or litigation is terminated; names and addresses of applications for a firearms license; materials used in tests, examinations and assessments if materials are to be used again; and records containing contracts for hospitals and related health care services.

This office stands ready to assist any custodian who is struggling with the provisions of the law. Free training, seminars and materials are available upon request. Telephone consultations are also available by calling the office at (617)727-2832.

©2014 Massachusetts Bar Association