This guide was compiled and written by Colman M. Herman.
Table of Contents
- Asking for records
- Custodian’s response
- The fees
- The exemptions
- Attorney-client privilege
- Quasi-government agencies/misc.
- More help/resource links
The Massachusetts Public Records Law – the Commonwealth’s counterpart to the federal Freedom of Information Act – allows citizens to inspect and obtain copies of documents in the possession of state and municipal agencies as well as other government entities such as boards, commissions and authorities.
The types of records subject to the public records law include a wide array of items ranging from papers, financial statements, and statistical tabulations to books, maps, and photographs. The availability of public records is dependent on the substance of the information, not the form in which it is maintained. Thus, electronic records, such as computer files, email, and audio- and videotapes are subject to the public records law.
The legislature and judiciary are not subject to the public records law, and recent governors claim they too are not subject to it. But every record held by other government entities is considered to be a public record unless one or more exemptions enumerated in the law can be properly claimed by the records custodian — the official who has access to or control of public records.
The Massachusetts Public Records Law is found at Massachusetts General Law, Chapter 66, (Section 10 in particular is of importance to records requesters), with its supporting regulation being found at 950 Code of Massachusetts Regulations 32.00. The exemptions to the Public Records Law are found at Massachusetts General Law, Chapter 4, Section 7(26).
Asking for records
There are no strict rules governing the manner in which requests for public records must be made. There is no specific form that you must use nor is there any particular language that must be included. A records custodian may provide a specific form to use, but you do not have to use it.
You must provide a reasonable description of the records you are seeking. A records custodian is required to use his or her “superior knowledge” to determine the exact records that are responsive to your request. If the records custodian does not have the records you’re seeking, but knows who does, he is expected to forward your request on to that person.
You can ask for public records either orally or in person (but not by telephone) or in writing by traditional mail, email or fax. But it is best to do it in writing because it not only reduces the possibility of confusion as to the precise records you are seeking, in the event of the need to appeal, the request must have been in writing. It is also prudent to submit your request by regular mail so you can obtain proof of delivery.
Here is a template of a letter you can use to make your public records request.
The heads of state agencies and their addresses can be found here.
The public records law does not require a records custodian to answer any of your questions about the records nor create records where none exist, but may do so at his or her discretion and charge for them. Similarly, the records custodian is not obligated to honor prospective requests for public records.
You can ask for records to be provided to you in electronic format, and if they exist as such, the records custodian must provide them electronically. If the records do not exist electronically, the custodian is not obligated to provide them electronically, but may do so at his or her discretion and charge a one-time fee for programming. But any fees imposed for subsequent requests for this record can be imposed only for the production of copies and not for programming.
A custodian cannot require proof of your identity. And in most cases, a the custodian is prohibited from asking you why you want the records — the lone exception being if you are seeking records related to public safety such as plans, blueprints, and schematic drawings. Here, the records custodian is allowed to ask you to voluntarily provide additional information about yourself and why you want the records. This will allow the custodian to make a “reasonable judgment” about whether or not to release the records to you. This exemption is further unique in its application in that disclosure of records to one requester does not render the records public to all requesters. In other words, one person may get the records, another person may not.
Except for the public safety exemption, every requester is treated equally under the public records law. So even a person who is the subject of the records being sought is not granted any greater right of access than any other person. In other words, the involvement of someone is immaterial.
The custodian’s response
The records custodian must respond in writing to your public records request within ten calendar days. In practice, that means the custodian must at least acknowledge receipt of your request. It often takes longer to obtain the records particularly if a lot of records are requested.
The response must be either an offer to provide the requested records or a denial in part or in total based on the claiming of one or more of the at least 70 exemptions available under the public records law, which is explained below.
The records custodian is obligated to inform you of your right to appeal the response to the supervisor of public records in the secretary of state’s office, which handles public records appeals for the state, or file a complaint in Superior Court or with the Supreme Judicial Court. The appeal process is explained in the section on appeals.
The mere stamping of “confidential” on a document by a public official, in and of itself, does not shield it from being a public record. If that were not the case, any official with a rubber stamp could easily frustrate the law.
There is nothing in the public records laws that precludes a government entity from contracting with a private vendor to maintain and store its records. But those records do not become the property of the vendor and thus are still subject to the public records law. In other words, the government entity cannot contract away its public records responsibilities and tell you to seek the records from the vendor. A change in location of the records does not abrogate the government’s obligations to ensure access to public records.
The records custodian is allowed to charge you for time spent retrieving, redacting, photocopying and refiling records, as well as 20 cents a page for standard photocopies. The hourly rate cannot be more than the hourly wage of the lowest paid employee who is capable of performing the required tasks. Since a records custodian is required to maintain records in an orderly manner, you cannot be charged for the need to organize records in order to comply with your request.
If the cost is estimated to exceed $10, the custodian must provide you with a detailed estimate of the cost of providing the records, with a statement that the final charge may vary. The custodian may require payment prior to starting to assemble the records.
The public records regulation encourages records custodians to waive fees “where disclosure would benefit the public interest,” but they are not required to do so. The reality is that waiver of fees is rare unless the request is for a limited number of documents.
One way to keep costs down is to request that you be allowed to examine the documents first and then decide which, if any, you want copies of.
A records custodian can deny access to records in part or in total by claiming one or more of the at least 70 exemptions available under the public records law. The use of these exemptions is discretionary, but when invoked, the official has the burden of explaining in his/her written response how and why the exemption applies to the records in question. Also, where exempt information is intertwined with non-exempt information, the non-exempt portions must be disclosed once the exempt portions are redacted.
The privacy exemption is one of the most frequently invoked by public officials. It permits the withholding of personnel and medical files. There are two important points to note here. First, public employees have a diminished expectation of privacy in matters relating to their public employment because the public has a legitimate interest in knowing whether public employees have the qualifications to properly perform their jobs. Second, the Massachusetts Appeals Court has held that materials that are part of a police internal affairs investigation (officers’ reports, witness interview summaries, and internal affairs reports) do not fall within the personnel exemption because they relate to the workings and determinations of the internal affairs process “whose quintessential purpose is to inspire public confidence.”
Besides personnel and medical files, the privacy exemption also allows officials to withhold any other documents containing information about a specifically named individual which, if disclosed, would be an unwarranted invasion of his or her personal privacy. Its application is limited to “intimate details of a highly personal nature” — such things as marital status, paternity, unemployment payments, government assistance, and family disputes. If the details are determined to be highly personal, it is then necessary to determine whether the public interest in disclosure outweighs the privacy interest of the individual.
Another commonly invoked exemption is the investigatory exemption, which allows officials to withhold: 1) documents that could compromise ongoing investigative efforts by alerting suspects to the existence of an investigation; 2) documents that would reveal confidential investigative techniques where the disclosure could prejudice future law enforcement efforts; and 3) documents that would reveal details of witness statements — this is intended to provide an assurance of confidentiality to private citizens so that they will speak openly about matters under investigation without fear of being harmed.
Still another exemption commonly invoked is the deliberative process exemption, which allows officials to withhold documents whose release could interfere with the deliberative process involved in policy development. Once the process is completed, though, the documents are subject to disclosure.
Attorney-client privilege shields from public view all confidential communications between a client and his or her attorney undertaken for the purpose of obtaining legal advice. The primary intent is to encourage clients to be completely candid with their attorneys and thus make full disclosure of all relevant facts to them, no matter how embarrassing or damaging these facts might be, without fear that what they say will be disclosed to the world. This, in turn, allows attorneys to provide fully informed legal advice to their clients while, at the same time, keeping the information beyond the knowledge of their clients’ adversaries.
Although nowhere in the public records law is the term “attorney-client privilege” to be found, public officials can claim attorney-client privilege based on a 2007 ruling (Suffolk Construction v. Division of Capital Asset Management) by the Supreme Judicial Court. The court held that “confidential communications between public officers and employees and governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of attorney-client privilege.” If it were otherwise, according to the SJC, it would “severely inhibit the ability of government officials to obtain quality legal advice essential to the faithful discharge of their duties, place public entities at an unfair advantage vis-s-vis private parties with whom they transact business and for whom the attorney-client privilege is all but inviolable, and impede the public’s strong interest in the fair and effective administration of justice.”
If a records custodian fails to respond to you within ten days, denies your request in part or in total, or you think the fee is too high, you may appeal to the supervisor of public records in the secretary of state’s office within 90 days. Or you may seek a judicial remedy in Superior Court or with the Supreme Judicial Court.
If you appeal to the supervisor of public records, in addition to your letter explaining the basis of your appeal, be certain to include a copy of your original request along with any response from the records custodian. Some examples of reasons to appeal are you did not receive a response; records were withheld, but no exemptions were claimed; exemptions were claimed, but their application was not explained; and/or the fee was to high.
Send your letter of appeal to:
Supervisor of Public Records
Office of the Secretary of State
One Ashburton Place
Boston, MA 02108
If the supervisor issues a ruling requiring the records custodian to hand over records or that the fee needs to be reduced, but the records custodian fails to comply, the supervisor, at his or her discretion, may turn the case over to the attorney general. Or alternatively, you can take the case into court.
Although opening up a case is at the discretion of the supervisor, in the overwhelming majority of cases, a determination will be issued as to the appropriateness of the response of the records custodian. The supervisor may decline to open an appeal where the public records in question are the subject of a dispute in active litigation, administrative hearings or mediation; if he or she believes the request is intended to harass or intimidate someone or assist in the commission of a crime; or if he or she thinks the public records request is made solely for a commercial purpose.
Be aware that it can take months or more to receive a ruling from the supervisor.
Quasi-Government Agencies / Miscellaneous
About 40 quasi-government agencies operate in Massachusetts, all of which are subject to the public records law. Some examples are the Massachusetts Convention Center Authority, the Massachusetts Life Science Center, the Massachusetts Technology Collaborative, the Massachusetts Development Finance Agency, and the Health Insurance Connector Authority.
There are other entities commonly thought to be public and thus subject to the Massachusetts Public Records Law, but they are not. One example is the Rose Kennedy Conservancy, which runs the Greenway on public land owned by the city of Boston. Another group not subject to the public records law runs the park on public land at Post Office Square in Boston.
More Help / Resources
For more help, please call CommonWealth magazine at (617) 742-6800.
About the public records law
Office of Campaign Finance’s Searchable Database
Massachusetts Lobbyist Database
Lobbyist Database Pre-2005
Searchable Corporate Database
Massachusetts Budgetary Process
BudgetBrowser – Massachusetts Budget and Policy Center
2009 State Employee Payroll – Boston Herald
2009 City of Boston Employee Payroll – Boston Herald
2009 Quasi-State Agencies Payroll – Boston Herald
Boston Redevelopment Authority Payroll – Boston Herald
Economic Development and Industrial Corp. of Boston Payroll – Boston Herald
Massachusetts Physician Profiles
Dept. of Health and Human Services Disciplinary and Other Board Actions
Massachusetts Attorney Database
Professional License Database
Office of Consumer Affairs and Business Regulation Disciplinary Actions Online Report
Massachusetts SJC and Appeals Court Case Information
SJC and Appeals Court Opinions
Today’s SJC Cases
City of Boston Restaurant Inspection Search
City of Cambridge Restaurant Inspection Search
Attorney General of Massachusetts Bid Protest Decisions
Non-profit and Charities Document Search
Massachusetts Open Checkbook