Public Records Access

Public Records Law

From A Guide to the Massachusetts Public Records Law (PDF), published by William Francis Galvin, Secretary of the Commonwealth, Division of Public Records

Note: The laws and regulations specifically for Agencies do not apply to the Town of Kingston.

Overview

The Massachusetts Public Records Law (Public Records Law) and its Regulations provide that each person has a right of access to public information.1 This right of access includes the right to inspect, copy or have copies of records provided upon the payment of a reasonable fee.2

The Public Records Law broadly define "public records" to include "all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee" of any Massachusetts governmental entity.3

There are strictly and narrowly construed exemptions and common law privileges to the broad definition of "public records."4 This guide will briefly review the application of these exemptions as well as explore some of the other issues that arise when a request is made for access to government records.

Updated Public Records Law

The Public Records Law and its Regulations were updated with changes effective January 1, 2017. Among other things, the updated law sets limits on fees, provides deadlines for the provision of records, and requires the designation of a "Records Access Officer." The updated law also distinguishes between "agencies" and "municipalities" and assigns certain duties to each entity.

The Regulations define "agency" as the following:

Any agency, executive office, department, board, commission, bureau, division, or authority of the commonwealth that is identified in M.G.L. c. 66, Section; 6A and c. 4, Section; 7, clause Twenty-sixth and makes or receives "public records", as defined in 950 CMR 32.02. Agency includes any person, corporation, association, partnership or other legal entity which receives or expends public funds for the payment or administration of pensions for any current or former employees of the commonwealth or any political subdivision as defined in M.G.L. c. 32, Section; 1.5

The Regulations define "municipality" as the following:

Cities and towns, local housing, redevelopment, or similar authorities. A consortium, consolidation, or combination of entities within a single political subdivision of the commonwealth or among multiple political subdivisions of the commonwealth shall be deemed a municipality.6

A "Records Access Officer" (RAO) is an employee of a governmental records custodian. An RAO is the employee designated within a governmental entity to perform certain duties, including coordinating a response to requests for access to public records, assisting individuals seeking public records in identifying the records requested, and preparing guidelines that enable requesters to make informed requests regarding the availability of such public records electronically or otherwise.7

The Request

There are no strict rules that govern the manner in which requests for public information should be made. Requests may be made in person or in writing. Written requests may be made in person, by mail, facsimile, or email.8 An RAO must provide information on her custodian's website with respect to requests for public records.

A requester must provide the RAO with a reasonable description of the desired information.9

The Response

The RAO must respond to requests without unreasonable delay and within ten business days.10 The RAO may offer to provide records; provide a fee estimate, where applicable; or deny access to records in a manner consistent with G. L. c. 66, Section; 10(a-b). 11

A denial must detail the specific basis for withholding the requested materials.12 The denial must include a citation to one of the statutory or common law exemptions upon which the RAO relies, and must explain why the exemption applies.13

A denial must also advise the requester of the right to seek redress through the administrative process provided by the Supervisor of Records (Supervisor) as well as the judicial remedy available in superior court.14

The mandatory disclosure provision of the Public Records Law only applies to information that is in the custody of the governmental entity at the time the request is received.15 Consequently, there is no obligation to create a record for a requester or to honor prospective requests. It should be noted, however, that the Regulations do not prohibit an RAO from responding to such requests.

Information contained in a database is presumed to exist at the time of the request. Provision of an extract of requested data does not constitute creation of a public record. An RAO may not deny a request for data contained in such a database on the theory that extraction results in creating a new record. To do so would deny access to information that does exist at the time of the request, though not in a form easily accessible by the requester.

All requests for public records must be honored in accordance with the Public Records Law. With the exception of situations in which an RAO is determining whether the records are being requested for a commercial purpose, whether to grant a fee waiver, or the applicability of Exemption (n), an RAO may not ask a requester the reason for the request or the intended use of the requested records. Inquiries by an RAO into a requester's status or motivation for seeking information are prohibited.16

Fees

An RAO may charge a reasonable fee to recover the costs of complying with a public records request.17 An RAO is encouraged, but not required, to waive fees where disclosure is in the public interest.18

The Supervisor does not have the authority to order a waiver of reasonable fees. An RAO assessing a fee must do so in accordance with any applicable statutory provisions, the Regulations or an enabling provision.19

The updated Public Records Law and its Regulations provide for the following with respect to fees to access public records:

Fees for segregating and redacting
An agency or municipality shall not assess a fee for time spent segregating and redacting a requested record unless such segregation or redaction is required by law or approved by the Supervisor of Records through a petition discussed below.20

"Segregation time" means the time used to review records to determine what portions are subject to redaction or withholding under M.G.L. c. 4, Section; 7, clause Twenty-sixth or other legally applicable privileges. Segregation time shall not include time expended to review record for accuracy and correct errors.21
"Redact" means to delete, or otherwise expurgate that part of a public record that is exempt from disclosure under M.G.L. c. 4, Section; 7, clause Twenty-sixth or other legally applicable privileges from non-exempt material.22

Fees for Copies
In addition to the search and segregation fees, records custodians may charge $0.05 for either single and double-sided black and white paper copies or printouts.23 When the request is for materials that are not susceptible to ordinary means of reproduction, such as photographs or computer tapes, the actual cost of reproduction may be assessed to the requester.24 There are also specific statutes that establish fees for copies of public records.25

Agencies
Agencies may not assess a fee for the first four hours of time spent searching for, compiling, segregating, redacting, and reproducing a requested record. Agencies may not assess a fee of more than $25 per hour for the cost to comply with a request for public records.26

Municipalities
Municipalities with a population of over 20,000 may not assess a fee for the first two hours of time spent searching for, compiling, segregating, redacting, and reproducing a requested record. Municipalities with a population of 20,000 and under may assess a fee, including the first two hours, for time spent searching for, compiling, segregating, redacting, and reproducing a requested record.27

Population data shall be determined by the decennial U.S. Census, and it shall be the burden of the RAO to provide population data information when responding to a request.28

A municipal records access officer may not assess a fee of more than $25 per hour for the cost to comply with a request for public records unless approved by the Supervisor through a petition discussed below.29

Sources

1 G. L. c. 66, Section; 10(a). 2 Id; 950 C.M.R. 32. 3 G. L. c. 4, Section; 7(26). 4 G. L. c. 4, Section; 7(26); see also Attorney General v. Assistant Commissioner of the Real Property Department of Boston, 380 Mass. 623, 625 (1980) (the statutory exemptions are to be strictly and narrowly construed) 5950 C.M.R. 32.02

6 Id.

7 Id.

8950 CMR 32.06(1)(c).

9950 CMR 32.06(1)(b).

10 G. L. c. 66, Section; 10(a-b); 950 CMR 32.06(2)(a).

11 Id.

12 G. L. c. 66, Section; 10(a-b). 13 Id.

14950 CMR 32.06(3)(c).

15 G. L. c. 4, Section; 7(26) (defining "public records" as materials which have already been "made or received" by a public entity); see also 32 Op. Att'y Gen. 157, 165 (May 18, 1977) (custodian is not obliged to create a record in response to a request for information).

16 See G. L. c. 66, Section; 10(a) (public records are to be provided to "any person"); but see G. L. c. 4, Section; 7(26)(n) (a records custodian may ask the requester to voluntarily provide additional information in order to reach a "reasonable judgment" regarding disclosure of responsive records); 950 CMR 32.06(2)(h).

17 G. L. c. 66, Section; 10(a); see also 950 CMR 32.07.

18950 CMR 32.07(2)(k). 19 See e.g., G. L. c. 66, Section; 10(a); see also 950 CMR 32.07.

20 G.L. c. 66, Section;10(d); 950 CMR 32.07(2)(d).

21950 CMR 32.02.

22 Id.

23950 CMR 32.07(2)(e).

24950 CMR 32.07(2)(h).

25 See e.g., G. L. c. 262, Section; 38 (copies of records at the Registry of Deeds).

26950 CMR 32.07(2)(l). 27950 CMR 32.07(2)(m).

28 Id.

29 Id.