A Guide to the Massachusetts Public Records Law 1
A Guide to the
Massachusetts
Public Records Law
Updated December 2022
Published by
William Francis Galvin
Secretary of the Commonwealth
For additional educational resources regarding the Public Records Law, please
contact the Public Records Division at:
Division of Public Records
One Ashburton Place, Room 1719
Boston, MA 02108
Telephone: (617) 727-2832
Fax: (617) 727-5914
Email: [email protected]e.ma.us
www.sec.state.ma.us/pre/preidx.htm
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A Guide to the Massachusetts Public Records Law
The founding fathers of our nation strove
to develop an open government formed on
the principles of democracy and public
participation. An informed citizen is better
equipped to participate in that process.
Laws mandating the disclosure of public
records have existed in the Commonwealth
of Massachusetts since 1851. The federal
Freedom of Information Act was signed
into law in 1966 by President Lyndon B.
Johnson. In 1974, Congress amended the
federal Freedom of Information Act in order to make government
records more accessible to the public.
The Massachusetts Public Records Law parallels federal law, with some
variation. Every government record in Massachusetts is presumed to be
public unless it may be withheld under a specifically stated exemption.
As Secretary of the Commonwealth and chief public information officer
for the Commonwealth, I am pleased to publish this guide explaining
the Public Records Law. The full text of the law is provided, as well as a
brief description of each of the exemptions to the law.
Also included is a section of frequently asked questions about a
requestor’s right to access public records, as well as a government
records custodian’s duty to respond to those requests.
Any additional questions regarding the Public Records Law should be
directed to the Division of Public Records at (617) 727-2832 during
regular business hours.
You may access Division of Public Records publications and other
information at www.sec.state.ma.us/pre/preidx.htm.
William Francis Galvin
Secretary of the Commonwealth
A Guide to the Massachusetts Public Records Law
3
Table of Contents
Overview ........................................................................................................................4
Definitions ..................................................................................................4
The Request................................................................................................6
The Response .............................................................................................7
Fees ..........................................................................................................10
Remedies for Requestors..........................................................................12
RAO Petitions ......................................................................................... 13
Agency RAO Reporting Requirement .................................................... 14
Exemptions to the Public Records Law .......................................................................15
Exemption (a) exempted from disclosure by statute ................................15
Exemption (b) internal personnel rules and practices.............................16
Exemption (c) unwarranted invasion of personal privacy.......................17
Exemption (d) policy positions being developed .....................................19
Exemption (e) notebooks and other materials .........................................20
Exemption (f) investigatory materials .....................................................21
Exemption (g) trade secrets . . . voluntarily provided .............................21
Exemption (h) proposals and bids ...........................................................22
Exemption (i) appraisals of real property ...............................................23
Exemption (j) licenses to carry or possess firearms ................................25
Exemption (k) Repealed, 1988 Mass Acts 180, § 2.................................25
Exemption (l) test, examination or assessment ........................................25
Exemption (m) contracts for hospital or related healthcare services .....26
Exemption (n) security or safety of persons or buildings ........................27
Exemption (o) home address . . . of an employee ....................................28
Exemption (p) name, home address . . . of a family member ...................29
Exemption (q) adoption contact information ...........................................29
Exemption (r) office of the child advocate ...............................................29
Exemption (s) trade secrets . . . energy supplier......................................30
Exemption (t) filed under section 20C of chapter 32...............................30
Exemption (u) proprietray information of the Univ. of Mass ..................30
Exemption (v) the health policy commission ...........................................30
Attorney-Client Communications ............................................................32
Geographic Information Systems (GIS)...................................................32
Records Management ...................................................................................................35
Records Retention ....................................................................................35
Electronic Records Storage ......................................................................36
Maintenance and Storage of Public Records............................................37
Frequently Asked Questions ........................................................................................39
Appendix ......................................................................................................................45
Public Records Law .....................................................................................45
Public Inspection and Copies of Records.....................................................50
Public Records Regulations .........................................................................59
Examples of Exemption (a) Statutes ............................................................78
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A Guide to the Massachusetts Public Records Law
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 a
copy of records provided upon the payment of a reasonable fee, if any.
2
The Public Records Law broadly defines “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.
Definitions
The following are definitions of terms that are commonly used in matters
involving the Public Records Law:
Agency. Any agency, executive office, department, board, commission,
bureau, division or authority of the commonwealth that is identified in G. L. c.
66, § 6A and c. 4, § 7(26) and makes or receives “public records”, as defined
in 950 C.M.R. 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 G.
L. c. 32, § 1.
Business Day. Monday through Friday. Business day does not include
Saturdays, Sundays, legal holidays, or other weekdays where a custodian’s
office is closed unexpectedly.
Commercial Purpose. The sale or resale of any portion of the public record or
the use of information from the public record to advance the requestor's
strategic business interests in a manner that the requestor can reasonably
expect to make a profit. This could include obtaining names and addresses
from the public record for the purpose of solicitation. It does not include
1
G. L. c. 66, § 10(a).
2
Id; 950 C.M.R. 32.07.
3
G. L. c. 4, § 7(26).
4
Id., see also Att’y Gen. v. Assistant Comm’r of the Real Prop. Dep’t of Boston, 380 Mass.
623, 625 (1980) (the statutory exemptions are to be strictly and narrowly construed).
A Guide to the Massachusetts Public Records Law
5
gathering or reporting news or gathering information to promote citizen
oversight or further the understanding of the operation or activities of
government or for academic, scientific, journalistic, or public research or
education.
Custodian. Any governmental entity that makes or receives public records.
Division. Division of Public Records, Office of the Secretary of the
Commonwealth of Massachusetts.
Governmental Entity. Any agency or municipality as defined in 950 C.M.R.
32.02. It includes any quasi-governmental agency that is considered a body
politic and corporate or public instrumentality. It does not include the
legislature and the judiciary.
Municipality. 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. This
office has found that regional school districts and local fire districts should be
considered municipalities for the purposes of this definition.
Public Record. 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 a
governmental entity unless such materials or data fall within one or more of
the exemptions found within G. L. c. 4, § 7(26) or other legally applicable
privileges.
Records Access Officer. The employee designated within a governmental
entity to perform duties described in 950 C.M.R. 32.00 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 requestors to make informed requests regarding the
availability of such public records electronically or otherwise.
Requestor. Any person or entity seeking to inspect or obtain copies of public
records.
Redact. To delete, or otherwise remove that part of a public record that is
exempt from disclosure under G. L. c. 4, § 7(26) or other legally applicable
privileges from non-exempt material.
Search Time. The time needed to locate and identify, pull from the files, copy
and re-shelve or refile a public record. However, it shall not include the time
expended to create the original record.
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A Guide to the Massachusetts Public Records Law
Secretary. The Secretary of the Commonwealth of Massachusetts.
Segregation Time. The time used to review records to determine what portions
are subject to redaction or withholding under G. L. c. 4, § 7(26) or other
legally applicable privileges. Segregation time shall not include time
expended to review record for accuracy and correct errors.
Supervisor. Supervisor of Public Records or Supervisor of Records.
Withhold. To not disclose a record under G. L. c. 4, § 7(26) or other legally
applicable privileges.
5
Updated Public Records Law
The Public Records Law and its Regulations were updated with changes
effective January 1, 2017. The latest amendment to the Regulations was
effective June 11, 2021. 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” (RAO). The updated law also
distinguishes between “agencies” and “municipalities” and assigns certain
duties to each entity.
For the purposes of this Guide, the terms “RAO,” “custodian,” “municipality,”
and “agency” represent various ways to describe the roles and obligations of
entities that are subject to the Public Records Law.
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 submitted in person, by mail, facsimile or email.
6
A
requestor must provide the RAO with a reasonable description of the desired
information.
7
The requestor is not required to provide any reason for making a request and,
generally, the purpose of the request has no bearing on the public status of the
record. All requestors must be treated the same with respect to the response to
their requests. Given this, the requestor may not be required to identify
himself or herself as a condition of obtaining access to the requested records.
The limited exception to this general rule will be discussed below in relation
to determining whether the records are requested for a commercial purpose or
whether to grant a request for a fee waiver.
8
5
950 C.M.R. 32.02.
6
950 C.M.R. 32.06(1)(c).
7
950 C.M.R. 32.06(1)(b).
8
G. L. c. 66, § 10(d)(viii).
A Guide to the Massachusetts Public Records Law
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The Response
If the RAO intends to produce records and is able to do so within 10 business
days, it must “at reasonable times and without unreasonable delay” permit
inspection or furnish a copy of any public record not later than 10 business
days following the receipt of the request.
9
The RAO must do so provided
that:
(i) the request reasonably describes the public record sought;
(ii) the public record is within the possession, custody or control of the
agency or municipality that the records access officer serves; and
(iii) the records access officer receives payment of a reasonable fee as
set forth in subsection (d) of G. L. c. 66, § 10.
10
If the agency or municipality does not intend to produce records, or if it is
unable to produce records within 10 business because the magnitude or
difficulty of the request or if multiple requests from the same requestor unduly
burdens the other responsibilities of the agency or municipality, the agency or
municipality must provide a written response to the requestor within 10
business days of receiving the request.
11
The written response may be provided in person or sent via first class or
electronic mail, and must include the following, to the extent applicable:
(i) confirm receipt of the request;
(ii) identify any public records or categories of public records sought that are
not within the possession, custody, or control of the agency or municipality
that the records access officer serves;
(iii) identify the agency or municipality that may be in possession, custody or
control of the public record sought, if known;
(iv) identify any records, categories of records or portions of records that the
agency or municipality intends to withhold, and provide the specific reasons
for such withholding, including the specific exemption or exemptions upon
which the withholding is based, provided that nothing in the written response
shall limit an agency’s or municipality’s ability to redact or withhold
information in accordance with state or federal law;
(v) identify any public records, categories of records, or portions of records
that the agency or municipality intends to produce, and provide a detailed
statement describing why the magnitude or difficulty of the request unduly
9
G. L. c. 66, § 10(a).
10
G. L. c. 66, § 10(a)(i-iii).
11
G. L. c. 66, § 10(b).
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A Guide to the Massachusetts Public Records Law
burdens the other responsibilities of the agency or municipality and therefore
requires additional time to produce the public records sought;
(vi) identify a reasonable timeframe in which the agency or municipality shall
produce the public records sought; provided, that for an agency, the timeframe
shall not exceed 15 business days following the initial receipt of the request
for public records and for a municipality the timeframe shall not exceed 25
business days following the initial receipt of the request for public records;
and provided further, that the requestor may voluntarily agree to a response
date beyond the timeframes set forth herein;
(vii) suggest a reasonable modification of the scope of the request or offer to
assist the requestor to modify the scope of the request if doing so would
enable the agency or municipality to produce records sought more efficiently
and affordably;
(viii) include an itemized, good faith estimate of any fees that may be charged
to produce the records; and
(ix) include a statement informing the requestor of the right of appeal to the
supervisor of records under subsection (a) of section 10A and the right to seek
judicial review of an unfavorable decision by commencing a civil action in the
superior court under subsection (c) of section 10A.
12
A denial must detail the specific basis for withholding the requested
materials.
13
The denial must include a citation to one of the statutory or
common law exemptions upon which the records custodian relies, and must
explain with specificity why the exemption applies.
14
A denial must also advise the requestor of the right to seek redress through the
administrative process provided by the Supervisor of Records as well as the
judicial remedy available in superior court.
15
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.
16
Consequently, there is no obligation to create a record
for a requestor or to honor prospective requests; however, the Regulations do
not prohibit an RAO from responding to such requests.
12
G. L. c. 66, § 10(b)(i)-(ix).
13
G. L. c. 66, § 10(a-b).
14
G. L. c. 66, § 10(b)(iv).
15
950 C.M.R. 32.06(3)(c).
16
G. L. c. 4, § 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).
A Guide to the Massachusetts Public Records Law
9
Furnishing a segregable portion of a public record shall not be deemed to be
creation of a new record.
17
It is also important to note that furnishing an
extract of existing data is not considered creation of a new record, as such data
exists at the time of the request and is segregable from nonresponsive and
exempt data.
18
Providing Records Electronically
The statutory definition of “public records” does not distinguish between
paper records and electronically stored information.
19
Rather, the law provides
that all information made or received by a public entity, regardless of the
manner in which it exists, constitutes “public records.”
Access to a record requested pursuant to the Public Records Law rests on the
content of the record. Public records, including emails made or received in an
individual’s capacity as a government employee, must be maintained and kept
in a manner that allows access by the general public, as they are subject to
mandatory disclosure upon request.
20
Whenever original public records are
created outside the government offices, they shall be transferred on a regular
and frequent basis to secure storage by the entity.
The updated Public Records Law emphasizes producing records efficiently
and electronically. As a result, an RAO must provide the public records to a
requestor by electronic means unless the record is not available in electronic
form or the requestor does not have the ability to receive or access the records
in a usable electronic form. If a requestor provides a preferred format for the
production of records, the RAO must provide the record in that format, to the
extent feasible. If no preferred format is mentioned, then the RAO must
provide the record in a searchable, machine readable format.
21
Agency RAOs must post commonly available public records on its website.
Examples of such records include final opinions; decisions; orders; votes from
proceedings; annual reports; notices of hearings; winning bids for public
contracts; awards of federal, state and municipal government grants; minutes
of open meetings; budgets; or any public record information of significant
interest that the RAO deems appropriate to post.
22
A municipal RAO shall post this same information on its website, to the
extent feasible.
23
17
G. L. c. 66, § 6A(d).
18
See 950 C.M.R. 32.07(1)(f).
19
G. L. c. 4, § 7(26).
20
G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90
(1979).
21
G. L. c. 66, § 6A(d).
22
G. L. c. 66, § 19(b).
23
950 C.M.R. 32.04(5)(g).
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A Guide to the Massachusetts Public Records Law
If the public record requested is available on an appropriately indexed and
searchable public website, the RAO may furnish the public record by
providing reasonable assistance in locating the requested record on the public
website.
24
Fees
A records custodian may charge a reasonable fee to recover the costs of
complying with a public records request.
25
However, it is important to note
that a fee for a public record may not be charged unless the RAO responded to
the requestor within 10 business days under G. L. c. 66, § 10(b), described
above.
26
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 (Supervisor)
through a petition discussed below.
27
As described in the Definitions section, “segregation time” means the time
used to review records to determine what portions are subject to redaction or
withholding under G. L. c. 4, § 7(26) or other legally applicable privileges.
Segregation time shall not include time expended to review a record for
accuracy and correct errors.
28
“Redact” means to delete, or otherwise expurgate that part of a public record
that is exempt from disclosure under G. L. c. 4, § 7(26) or other legally
applicable privileges from non-exempt material.
29
The Supervisor’s office has found that information that is “required by law” to
be segregated or redacted is found in statutes that explicitly indicate that
certain records or information are not public records. Some common examples
are the student record statute (G. L. c. 71, § 34D), the Criminal Offender
Record Information (CORI) Act (G. L. c. 6, § 167), and laws regarding the
confidentiality of domestic violence records (G. L. c. 41, § 97D; G. L. c. 41, §
98F; G. L. c. 209A, § 8). These statues operate through Exemption (a) of the
Public Records Law as further described below. Segregation or redaction
24
G. L. c. 66, § 6A(d).
25
G. L. c. 66, § 10(a); see also 950 C.M.R. 32.07.
26
G. L. c. 66, § 10(e).
27
G. L. c. 66, §10(d); 950 C.M.R. 32.07(2)(d).
28
950 C.M.R. 32.02.
29
Id.
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under the attorney-client privilege has also been found to be “required by
law.”
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.
30
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 requestor.
31
There are also
specific statutes that establish fees for copies of public records.
32
Agencies
Agencies may not assess a fee for the first 4 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.
33
Municipalities
Municipalities with a population of over 20,000 may not assess a fee for the
first 2 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 2 hours, for time spent
searching for, compiling, segregating, redacting and reproducing a requested
record.
34
Population data shall be determined by the decennial US. Census and it shall
be the burden of the RAO to provide population data information when
responding to a request.
35
A municipality 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.
36
30
950 C.M.R. 32.07(2)(e).
31
950 C.M.R. 32.07(2)(h).
32
See e.g., G. L. c. 262, § 38 (copies of records at the Registry of Deeds).
33
950 C.M.R. 32.07(2)(l).
34
950 C.M.R. 32.07(2)(m).
35
Id.
36
Id.
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A Guide to the Massachusetts Public Records Law
Remedies for Requestors
Supervisor of Records
If a records custodian denies access to, or cannot produce requested records in
10 business days, the records custodian is still required by statute to provide a
response in accordance with G. L. c. 66, § 10(b) within 10 business days. The
custodian must also inform the requestor of the right of appeal to the
Supervisor under G. L. c. 66, § 10(A)(a).
37
A requestor who is denied access
to any requested information may petition the Supervisor for an appeal of the
response, or lack thereof, within 90 days.
38
The Supervisor, assisted by Public Records Division staff, then reviews the
written request, the custodian’s written response, and provides a written ruling
on the status of the records or the reasonableness of a fee estimate.
The Supervisor must issue a determination within 10 business days of receipt
of the appeal.
39
If a custodian does not comply with an order, the Supervisor
may notify the Office of the Attorney General for enforcement.
40
The Supervisor and the Public Records Division staff provide training by
request to public entities and associations of public employees seeking
information on the proper application of the Public Records Law to its
records. Public Records Division staff will answer questions on the phone
informally, both from requestors and from government entities.
You may view determinations issued by the Supervisor since 2014 on the
Public Records Division website at:
http://www.sec.state.ma.us/appealsweb/appealsstatus.aspx.
Superior Court
Notwithstanding the ability to appeal to the Supervisor, a requestor may
initiate a civil action to enforce the requirements of the Public Records Law.
Under the updated Public Records Law, the superior court may award
reasonable attorney fees and costs in certain circumstances.
41
37
See G. L. c. 66, § 10(b)(ix).
38
950 C.M.R. § 32.08(1)(d)-(e).
39
G. L. c. 66, § 10A(a).
40
G. L. c. 66, § 10A(b).
41
G. L. c. 66, § 10A(c)-(d).
A Guide to the Massachusetts Public Records Law
13
RAO Petitions
RAOs may petition the Supervisor with respect to assessing fees and seeking
an extension of time to produce public records.
42
Fee petitions
A fee shall not be assessed for time spent segregating or redacting records
unless such segregation or redaction is required by law or approved by the
Supervisor under a petition under G. L. c. 66, § 10(d)(iv).
43
Such a petition is
encouraged to address the applicability of each of the factors described in G.
L. c. 66, §10(d)(iv) as pertains to the specific request at issue. The lack of this
information is grounds to deny the petition.
A fee petition must be made within 10 business days after receipt of a request
for public records. A municipal RAO may also petition the Supervisor for
permission to charge fees in excess of the maximum hourly rate of $25 per
hour for time required to comply with a request. Filing a petition does not
affect the requirement that an RAO shall provide an initial response that
complies with the requirements of G. L. c. 66, § 10(b) to a requestor within 10
business days after receipt of a request for public records. A fee petition
cannot be approved if the RAO has not provided the initial response to a
requester. G. L. c. 66, § 10(e).
Time petitions
If a custodian is unable to complete the request within the time provided in G.
L. c. 66, § 10(b)(vi), because of the “magnitude or difficulty of [the] request
or the receipt of multiple requests from the same requestor,” it may petition
the Supervisor for an extension of the time to furnish copies of the requested
record that the custodian intends to provide. Such a petition should address the
applicability of each of the factors described in G. L. c. 66, §10(c)(i) – (vi) as
pertaining to the specific request at issue. The lack of this information is
grounds for the denial of the petition. A request for an extension of time
should address how either the magnitude or difficulty of the particular request
involved, or the receipt of multiple other requests by the same requestor,
create an undue burden.
A petition for an extension of time must be submitted within 20 business days
of receipt of a request or within 10 business days after receipt of a
determination by the Supervisor that the requested record constitutes a public
record. Filing a petition does not affect the requirement that an RAO shall
42
G. L. c. 66, § 10(c), (d)(iv); 950 C.M.R. 32.06(4).
43
See G. L. c. 66, § 10(d)(ii)-(iii); 950 C.M.R. 32.06(4).
14
A Guide to the Massachusetts Public Records Law
provide an initial response to a requestor within 10 business days after receipt
of a request for public records.
Upon a showing of good cause, the Supervisor may grant a single extension of
20 business days to an agency and 30 business days to a municipality.
44
If the Supervisor determines that the request is part of a series of
contemporaneous requests that are frivolous or designed to intimidate or
harass, and the requests are not intended for the broad dissemination of
information to the public about actual or alleged government activity, the
Supervisor may grant a longer extension or relieve the agency or municipality
of its obligation to provide copies of the records sought.
45
For more information about petitions, please refer to SPR Bulletin 03-17 at
https://www.sec.state.ma.us/pre/prepra/significant-interest/SPR-Bulletin-03-
17-Petitions-Bulletin.htm.
Agency RAO Reporting Requirement
Agency RAOs are required to report to the Secretary of the Commonwealth
(Secretary) certain information pertaining to requests for public records. This
information includes, among other things, the nature of the request, the date of
the request and response, the amount of fees assessed, and information
regarding the use of administrative and judicial remedies.
46
Agency RAOs must report this information by using an online form provided
on the Secretary’s website. This website serves as the form prescribed by the
Secretary to accomplish this task as required by G. L. c. 66, § 6A(e).
Agency RAOs may complete the online form using the following link:
www.sec.state.ma.us/AgencyRAOWeb/RAOAccounts/Welcome.aspx.
The public may search the Agency Public Records Request Database website
at: www.sec.state.ma.us/RequestSearchWeb/Webpages/Welcome.aspx.
44
Id.
45
Id.
46
G. L. c. 66, § 6A(e).
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15
Exemptions to the Public Records Law
The statutory definition of “public records” contains exemptions providing the
basis for withholding records completely or in part.
47
The exemptions are
strictly and narrowly construed.
48
Where exempt information is intertwined
with non-exempt information, the non-exempt portions are subject to
disclosure once the exempt portions are deleted.
49
A review of the appropriate
applications of the exemptions follows.
Exemption (a) – The Statutory Exemption
Exemption (a) applies to records that are:
specifically or by necessary implication exempted from disclosure by
statute.
50
A government entity may use the statutory exemption as a basis for
withholding requested materials where the exempting statute expressly states
or necessarily implies that the public’s right to inspect records under the
Public Records Law is restricted.
51
This exemption creates two categories of exempt records. The first category
includes records that are specifically exempt from disclosure by statute. Such
statutes expressly state that such a record either “shall not be a public record,”
“shall be kept confidential” or “shall not be subject to the disclosure provision
of the Public Records Law.”
52
The second category under the exemption includes records deemed exempt
under statute by necessary implication.
53
Such statutes expressly limit the
dissemination of particular records to a defined group of individuals or
entities.
54
A statute is not a basis for exemption if it merely lists individuals or
entities to whom the records are to be provided; the statute must expressly
limit access to the listed individuals or entities.
47
G. L. c. 4, § 7(26).
48
Assistant Comm’r of the Real Prop. Dep’t of Boston, 380 Mass. at 625.
49
G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (the statutory exemptions are not
blanket in nature).
50
G. L. c. 4, § 7(26)(a).
51
Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v.
Appeals Court, 372 Mass. 539, 545-46 (1977).
52
See, e.g., G. L. c. 41, § 97D (all reports of rape or sexual assault “shall not be public
reports”).
53
G. L. c. 4, § 7(26)(a).
54
See, e.g., G. L. c. 71, §§ 34D and 34E.
16
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For example: Can a requestor have access to reports of rape and sexual
assault or attempts to commit such offenses, or abuse perpetrated by family or
household members?
G. L. c. 41, § 97D provides that these records, along with all communications
between police officers and victims of such offenses or abuse shall not be
public reports and shall be maintained by the police departments in a manner
that shall assure their confidentiality. However, this statute also lists groups of
people and entities that may access these records, including victims and their
attorneys, victim-witness advocates, and law enforcement.
Please reference the Appendix of this Guide for other examples of statutes that
specifically exempt records from disclosure.
Exemption (b)
Exemption (b) applies to records that are:
related solely to internal personnel rules and practices of the
government unit, provided however, that such records shall be
withheld only to the extent that proper performance of necessary
governmental functions requires such withholding.
55
There are no authoritative Massachusetts decisions interpreting Exemption
(b). The general purpose of the cognate federal exemption, however, is to
relieve agencies of the burden of assembling and maintaining for public
inspection matters in which the public cannot reasonably be expected to have
a legitimate interest.
56
The language of the federal provision is duplicated in the first clause of
Exemption (b). The addition of the qualifying second clause of Exemption (b)
evidences a legislative intent to create an exemption that is narrower in scope
than the previously enacted, parallel federal exemption.
57
For Exemption (b) to apply in Massachusetts, a records custodian must
demonstrate not only that the records relate solely to the internal personnel
practices of the government entity, but also that proper performance of
necessary government functions will be inhibited by disclosure.
For example: Are certain Department of Correction (DOC) security policies
and procedures public?
55
G. L. c. 4, § 7(26)(b).
56
Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976).
57
See Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432-33 (1983) (where the
language of a parallel state statute differs in material respects from a previously enacted
federal statute, a rejection or expansion of the legal principles embodied in the federal
statute may be inferred).
A Guide to the Massachusetts Public Records Law
17
One of the DOC’s primary functions is to maintain secure penal institutions.
Information regarding certain procedures used by correctional officers during
law enforcement activities may relate solely to the internal workings of the
DOC. Moreover, disclosure of this information could prove detrimental to the
DOC’s law enforcement efforts, as knowledge of the DOC’s security response
procedures could enable an inmate to circumvent such procedures.
Accordingly, Exemption (b) will allow the DOC to withhold portions of the
these policies.
Exemption (c)
Exemption (c) applies to:
personnel and medical files or information and any other materials or
data relating to a specifically named individual, the disclosure of
which may constitute an unwarranted invasion of personal privacy;
provided, however, that this subclause shall not apply to records
related to a law enforcement misconduct investigation
58
Massachusetts courts have found that “core categories of personnel
information that are ‘useful in making employment decisions regarding an
employee’” may be withheld from disclosure.
59
For example, “employment
applications, employee work evaluations, disciplinary documentation, and
promotion, demotion, or termination information pertaining to a particular
employee,” may be withheld pursuant to Exemption (c).
60
The courts have
also discussed specific categories of records that may be redacted under
Exemption (c).
61
Analysis under Exemption (c) is subjective in nature and requires a balancing
of the public's right to know against the relevant privacy interests at stake.
62
Therefore, determinations must be made on a case by case basis.
There are factors to consider when assessing the weight of the privacy interest
at stake: (1) whether disclosure would result in personal embarrassment to an
individual of normal sensibilities; (2) whether the materials sought contain
intimate details of a highly personal nature; and (3) whether the same
information is available from other sources.
63
58
G. L. c. 4, § 7(26)(c).
59
Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1,
5 (2003).
60
Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000).
61
See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-
A (June 14, 2013).
62
Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop.
Dep’t, 380 Mass. 623, 625 (1980).
63
See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass.
280, 292 (2017).
18
A Guide to the Massachusetts Public Records Law
Examples of the types of personal information which the privacy portion of
this exemption is designed to protect include: marital status, legitimacy of
children, identity of fathers of children, medical condition, welfare payments,
alcohol consumption, family fights, and reputation.
64
Exemption (c) requires a balancing test which provides that where the public
interest in obtaining the requested information substantially outweighs the
seriousness of any invasion of privacy, the private interest in preventing
disclosure must yield.
65
The public has a recognized interest in knowing
whether public servants are carrying out their duties in a law-abiding and
efficient manner.
66
The SJC has also found that a public interest, even one
unrelated to government operations, may be a factor in determining the weight
of the public interest in disclosure.
67
Public employees have a diminished expectation of privacy in matters relating
to their public employment.
68
Consequently, the public will have greater
access to information that relates to an individual’s public employment than to
the same individual’s private activities.
69
For example, an individual’s public
employment salary is a public record, but the source or amount of private
income generally is not public information.
70
For example: Are settlement agreements exempt under the Public Records
Law?
The public interest in the financial information of a public employee
outweighs the privacy interest where the financial compensation in question is
drawn on an account held by a government entity and comprised of taxpayer
funds. Additionally, the disclosure of the settlement amount would assist the
public in monitoring government operations. Therefore, exemptions to the
Public Records Law will not operate to allow for the withholding of
settlement agreements as a whole. However, portions of the agreements, and
related responsive records, may be redacted pursuant to the Public Records
Law.
71
64
Boston Globe Media Partners, LLC v. Dep’t of Pub. Health, 482 Mass. 427, 443 n.17
(2019).
65
PETA, 477 Mass. at 291.
66
Id. at 292.
67
Boston Globe Media Partners, LLC, 482 Mass. at 451.
68
Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987).
69
Hastings & Sons Publ’g. Co. v. City Treasurer of Lynn, 374 Mass. 812, 818 (1978).
70
Collector of Lynn, 377 Mass. at 156.
71
See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-
A (June 14, 2013).
A Guide to the Massachusetts Public Records Law
19
For example: Are cell phone numbers and personal email addresses of private
citizens public?
A private citizen whose cell phone number and personal email address is
unpublished may have a reasonable expectation of privacy in this information.
Any public interest in the disclosure of cell phone numbers and personal email
addresses of citizens likely does not outweigh the privacy interest because this
information would not shed light on whether government officials are carrying
out their duties in a law-abiding and efficient manner. Therefore, this
information can likely be withheld under Exemption (c).
Exemption (d) – The Deliberative Process Exemption
Exemption (d) applies to:
inter-agency or intra-agency memoranda or letters relating to policy
positions being developed by the agency; but this subclause shall not
apply to reasonably completed factual studies or reports on which the
development of such policy positions has been or may be based.
72
The exemption is intended to avoid release of materials that could taint the
deliberative process if prematurely disclosed. Its application is limited to
recommendations on legal and policy matters found within an ongoing
deliberative process that are contained within inter-agency or intra-agency
memoranda or letters.
73
Factual reports which are reasonably complete and inferences which can be
drawn from factual investigations, even if labeled as opinions or conclusions,
are not exempt as deliberative or policy making materials.
74
Only portions of
records that possess a deliberative or policymaking character and relate to an
ongoing deliberative process are exempt from mandatory disclosure.
The Supreme Judicial Court (SJC) opined on the status of attorney work
product under Exemption (d) in DaRosa v. City of New Bedford.
75
In
DaRosa, the SJC concluded that “opinion” work product that was prepared in
anticipation of litigation or for trial by or for a party or its representative falls
within the scope of Exemption (d).
76
It also concluded that “fact” work
product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of
72
G. L. c. 4, § 7(26)(d).
73
Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988); see
Boston Globe Media Partners, LLC v. Dep’t of Pub. Health, Suffolk Sup. No. 19-02387
(October 21, 2019) (finding that data files do not fall within Exemption (d), in part,
because they are not part of inter-agency or intra-agency memoranda or letters).
74
Moore-McCormack Lines, Inc. v. I.T.O. Corp. of Baltimore, 508 F.2d 945, 948 (1974)
(construing cognate federal provision).
75
DaRosa v. City of New Bedford, 471 Mass. 446 (2015)
76
Id. at 448.
20
A Guide to the Massachusetts Public Records Law
litigation or trial falls within the scope of Exemption (d) where it is not a
reasonably completed study or report or, if it is reasonably completed, where
it is interwoven with opinions or analysis leading to opinions.
77
For example: Are drafts of a strategic plan being developed public?
To the extent that the deliberation remains ongoing, drafts of a strategic plan
may be withheld under Exemption (d). However, a records custodian should
look to see whether it can release purely factual matters during the
deliberation. It should be noted that a change in the status of the deliberation
would impact the applicability of this exemption.
For example: Can an agency withhold a report on a broken water pipe,
prepared in anticipation of litigation, as attorney work product under
Exemption (d)?
The agency may withhold portions of the report that consitute “opinion” work
product. However, if the report is reasonably completed, then any portions of
the report that constitute “fact” work product must be provided to the
requestor.
Exemption (e)
Exemption (e) allows the withholding of:
notebooks and other materials prepared by an employee of the
commonwealth which are personal to him and not maintained as part
of the files of the governmental unit.
78
The application of Exemption (e) is limited to records that are work-related
but can be characterized as personal to an employee. Materials covered by the
exemption include personal reflections on work-related activities and notes
created by an employee to assist them in preparing reports. The exemption
may not be used to withhold any materials that are shared with other
employees or are being maintained as part of the files of a governmental
unit.
79
For example: A requestor sought all documents from a government entity
related to a particular issue. The responsive records included personal notes of
the government entity’s employee. Are these notes public?
Notes are not public if they are personal in nature, kept by the employee
merely to assist them, are not shared with anyone in the department and are
not maintained as part of the department’s files.
77
Id.
78
G. L. c. 4, § 7(26)(e).
79
Id.
A Guide to the Massachusetts Public Records Law
21
Exemption (f) - The Investigatory Exemption
Exemption (f), the investigatory exemption, provides custodians a basis for
withholding:
investigatory materials necessarily compiled out of the public view by
law enforcement or other investigatory officials the disclosure of which
materials would probably so prejudice the possibility of effective law
enforcement that such disclosure would not be in the public interest.
80
The exemption allows investigative officials to withhold materials that could
compromise investigative efforts if disclosed. Exemption (f) does not,
however, create a blanket exemption for all records that investigative officials
create or maintain.
81
A custodian of records generally must demonstrate a
prejudice to investigative efforts in order to withhold requested records.
Information relating to an ongoing investigation may be withheld if disclosure
could alert suspects to the activities of investigative officials. Confidential
investigative techniques may also be withheld indefinitely if disclosure is
deemed to be prejudicial to future law enforcement activities.
82
Redactions may be appropriate where they serve to preserve the anonymity of
voluntary witnesses.
83
Exemption (f) invites a “case-by-case consideration” of
whether disclosure “would probably so prejudice the possibility of effective
law enforcement that such disclosure would not be in the public interest.”
84
For example: If a requested incident report contains witness identities, can a
police department use Exemption (f) to withhold the requested report in its
entirety?
Generally, a police incident report may be released to a requestor after the
records custodian has redacted the exempt portions from the record, such as,
medical information and information that may identify a voluntary witness.
Exemption (g)
Exemption (g) applies to:
trade secrets or commercial or financial information voluntarily
provided to an agency for use in developing governmental policy and
upon a promise of confidentiality; but this subclause shall not apply to
information submitted as required by law or as a condition of receiving
80
G. L. c. 4, § 7(26)(f).
81
Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 512 (1995); WBZ-TV4 v.
Dist. Attorney for the Suffolk Dist., 408 Mass. 595, 603 (1990).
82
Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976).
83
Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein, 378 Mass. at 290 n.18.
84
See Reinstein, 378 Mass. at 289-90.
22
A Guide to the Massachusetts Public Records Law
a governmental contract or other benefit.
85
To properly claim Exemption (g), a custodian must meet all six criteria
contained in the exemption: (1) trade secrets or commercial or financial
information; (2) voluntarily provided to a government entity; (3) for use in
developing government policy; (4) upon an assurance of confidentiality; (5)
information not submitted by law; and (6) information not submitted as a
condition of receiving a governmental benefit. Consequently, this exemption
does not apply to information that companies provide to the government in
connection with a contract bid or in compliance with a filing requirement.
86
For example: Is a Memorandum submitted as an exhibit in an enforcement
hearing before an administrative agency a public record?
Although the first criterion may have been met if the Memorandum contained
commercial information, the remaining criteria likely cannot be met. This is
because the Memorandum was not voluntarily submitted, was not provided
for use in developing government policy, and was not submitted upon a
promise of confidentiality.
Exemption (h)
Exemption (h) serves to protect the integrity of the bidding processes used by
the government to procure goods and services by allowing a records custodian
to withhold the proposals of early bidders from other interested parties.
87
Competitive bidding ensures full publicity of the contract and encourages the
guarding of the public welfare.
88
Although the competitive bidding process
does not have the advantages of more flexible purchasing policies, the
legislature has mandated the process to foster honesty and accountability in
government.
89
Specifically, Exemption (h) applies to:
proposals and bids to enter into any contract or agreement until the
time for the opening of bids in the case of proposals or bids to be
opened publicly, and until the time for the receipt of bids or proposals
has expired in all other cases; and inter-agency or intra-agency
communications made in connection with an evaluation process for
reviewing bids or proposals, prior to a decision to enter into
negotiations with or to award a contract to, a particular person.
90
85
G. L. c. 4, § 7(26)(g).
86
Id.
87
Datatrol Inc. v. State Purchasing Agent, 379 Mass. 679, 691 (1980) (the purposes of
competitive bidding go beyond economy and efficient administration to the prevention of
favoritism in the awarding of government contracts).
88
Id. at 699.
89
Id. at 701.
90
G. L. c. 4, § 7(26)(h).
A Guide to the Massachusetts Public Records Law
23
The exemption addresses two types of records held by an awarding authority
(records custodian), each with its own time frame. Proposals may be withheld
until the time for the receipt of proposals has expired. Bids may be withheld
until such time as the bids are publicly opened and read by the awarding
authority. This allows the proposals of early bidders to be kept in confidence
so that subsequent bidders do not gain an unfair advantage, thus, keeping all
on equal footing. The limitation on the duration of the exemption provides the
public with an opportunity to review the rejected proposals to ensure that
taxpayer dollars are wisely spent.
The second clause of the exemption is similar to Exemption (d) in its
application.
91
It allows government officials to withhold any inter-agency or
intra-agency communications regarding the evaluations of the bids or
proposals until the records custodian renders a decision to enter into
negotiations with the successful bidder or awards the contract.
For example: May the records custodian withhold proposal and bid
documents until the records custodian has finalized a contract with the
construction company or developer?
The first clause of Exemption (h) allows the records custodian to withhold
proposals and bids from disclosure until the time for the opening bids or until
the time for receipt of proposals has expired. Once that occurs, the proposals
and bids no longer fall under the protection of Exemption (h) and can no
longer be withheld.
For example: May the records custodian withhold any records concerning the
evaluations of the bidders and the awarding process, and at what point do the
records become public?
The second clause of Exemption (h) allows the records custodian to withhold
any inter-agency or intra-agency communications that are made in the process
of reviewing the bids and proposals, prior to entering into negotiations with,
or to award the contract to, a particular person. The records custodian may
withhold the records pursuant to Exemption (h) only until the contract has
been awarded. Once a decision has been made to enter into negotiations the
records custodian can no longer withhold the records.
Exemption (i)
The purpose of Exemption (i) is to provide governmental entities engaged in
the acquisition of real property, either through a purchase or an eminent
domain proceeding, the same degree of confidentiality that is afforded to
private parties. The exemption ensures that the government will not be at a
bargaining disadvantage by allowing the other party to use the Public Records
91
G. L. c. 4, § 7(26)(d).
24
A Guide to the Massachusetts Public Records Law
Law to gain access to an appraisal prior to completion of negotiations or
litigation. Exemption (i) applies to:
appraisals of real property acquired or to be acquired until (1) a final
agreement is entered into; or (2) any litigation relative to such
appraisal has been terminated; or (3) the time within which to
commence such litigation has expired.
92
Application of Exemption (i) is limited to situations in which a governmental
entity is concerned that disclosure of the subject appraisal will compromise its
ability to effectively negotiate a fair purchase or sale price for the property.
The legislature defined “appraisal” as any written analysis, opinion, or
conclusion prepared by a real estate appraiser relating to the nature, quality,
value or utility of specified interests in, or aspects of, identified real estate.
93
The language of the statute is clear that the three provisions are alternative
rather than requisite conditions. Therefore, once one of the three alternatives
has occurred, Exemption (i) will no longer serve as a means to withhold the
subject appraisal.
For example: May a housing authority (records custodian) withhold
appraisals pursuant to Exemption (i) where the records custodian has entered
into a final agreement with the property owner and the property owner has
agreed to forgo all possible eminent domain claims against the housing
authority?
Once one of the three provisions of the exemption has occurred, Exemption (i)
cannot be used to withhold the subject appraisal. In this case, the parties
reached a final agreement regarding the property, therefore, the exemption no
longer applied and the records custodian could not continue to withhold the
appraisals.
For example: Where a requestor seeks appraisal documents on a parcel for
which a negotiated final settlement has been reached, may the records
custodian withhold the appraisals on all the parcels of land being acquired for
the project until it reaches final agreement on all the parcels and the litigation
on the parcels is finalized?
Exemption (i) is parcel specific and the records custodian may only withhold
an appraisal until an agreement has been reached, litigation relative to the
appraisal has been terminated, or the time within which to commence such
litigation has expired. In this situation, the appraisal sought by the requestor
pertained to a parcel that had already been acquired, and the records custodian
was ordered to produce the appraisal documents for that specific parcel.
94
92
G. L. c. 4, § 7(26)(i).
93
G. L. c. 112, § 173 (definition of appraisal).
94
Coleman v. Boston Redevelopment Auth., 61 Mass. App. Ct. 239 (2004).
A Guide to the Massachusetts Public Records Law
25
Exemption (j)
Exemption (j) allows records custodians of firearm records to withhold:
the names and addresses of any persons contained in, or referred to in,
any applications for any licenses to carry or possess firearms issued
pursuant to chapter one hundred and forty or any firearms
identification cards issued pursuant to said chapter one hundred and
forty and the names and addresses on sales or transfers of any
firearms, rifles, shotguns, or machine guns or ammunition therefor, as
defined in said chapter one hundred and forty and the names and
addresses on said licenses or cards.
95
Exemption (j) allows the identifying data, in particular, the name and address
of the licensee to be deleted from the record prior to disclosure. In addition to
Exemption (j), there are other statutes that govern the release of firearms
records.
96
For example: What if the records custodian receives a request for firearm
records of a specifically named individual, such as, “I request all gun permits
issued to John Smith”?
Here, the records custodian may withhold the entire record, because even if
the name and address are redacted, the requestor knows with certainty that this
particular record pertains to John Smith.
Exemption (k). Repealed, 1988 Mass Acts 180, § 2.
Although Exemption (k) was repealed, the legislature retained the substance
of the exemption, incorporating the language into another section of the
General Laws. It reads: “…[T]hat part of the records of a public library
which reveals the identity and intellectual pursuits of a person using such
library shall not be a public record as defined by clause Twenty-sixth of
section seven of chapter four.
97
G. L. c. 78, § 7 operates through Exemption (a) of the Public Records Law to
provide a basis for denying access to library circulation records.
98
Exemption (l)
Exemption (l) provides a basis for withholding from disclosure:
95
G. L. c. 4, § 7(26)(j).
96
G. L. c. 66, § 10B (discussing the confidentiality of records divulging or tending to divulge
the names and addresses of persons who own or possess firearms); G. L. c. 140, §§ 121-131P
(discussing sale of firearms).
97
G. L. c. 78, § 7 (discussing Public Libraries).
98
G. L. c. 4, § 7(26)(a).
26
A Guide to the Massachusetts Public Records Law
questions and answers, scoring keys and sheets and other materials
used to develop, administer or score a test, examination or assessment
instrument; provided, however, that such materials are intended to be
used for another test, examination or assessment instrument.
99
The purpose of Exemption (l) is to prevent individuals from gaining an unfair
advantage by using the Public Records Law to access test questions and
answers prior to the administration of an examination.
As long as the same materials are used to administer subsequent examinations,
the custodian of records may continue to withhold the materials pursuant to
Exemption (l). The action to withhold the testing materials ensures that the
integrity of future testing is not jeopardized.
For example: May a records custodian withhold a copy of a middle school
mid-term examination, when the request is made by a parent of one of the
school’s students?
Where the school has proven that the test questions administered to this
student on this mid-term examination will be used for future examinations, the
school may properly withhold the testing materials pursuant to Exemption (l).
For example: May a records custodian withhold testing materials, when a
request is made for all documents related to the issue of discrimination in the
Massachusetts Comprehensive Assessment System (MCAS)?
Pursuant to Exemption (l), the records custodian may properly withhold the
test questions and answers, and any other testing materials that are currently
used or may be used to administer subsequent MCAS examinations.
Exemption (m)
Exemption (m) applies to:
contracts for hospital or related health care services between (i) any
hospital, clinic or other health care facility operated by a unit of state,
county or municipal government and (ii) a health maintenance
organization arrangement approved under chapter one hundred and
seventy-six I, a nonprofit hospital service corporation or medical
service corporation organized pursuant to chapter one hundred and
seventy-six A and chapter one hundred and seventy-six B, respectively,
a health insurance corporation licensed under chapter one hundred
and seventy- five or any legal entity that is self insured and provides
health care benefits to its employees.
100
99
G. L. c. 4, § 7(26)(l).
100
G. L. c. 4, § 7(26)(m).
A Guide to the Massachusetts Public Records Law
27
Although Exemption (m) has yet to be interpreted by any Massachusetts court,
the language of the exemption is clear. The exemption pertains to contracts for
hospital or healthcare services between a government-operated healthcare
facility and a health maintenance organization or health insurance corporation.
To properly claim Exemption (m), the records custodian must meet all four
criteria contained in the exemption: (1) the record must be a contract; (2) the
contract must be for hospital or related health care services; (3) one of the
contracting parties must be a government-operated medical facility; and (4)
the party providing services must be one of the entities described by the
exemption. If the requested record satisfies all of the criteria, the records
custodian may withhold the record pursuant to Exemption (m).
For example: May a city or town withhold records pertaining to the health
insurance plans and the costs of providing these health insurance benefits to
employees of the city or town pursuant to Exemption (m)?
Exemption (m) specifically applies only to records that are contracts for
hospital or related health care services. Additionally, one of the contracting
parties must be a government operated medical facility, such as a hospital or
clinic, and the party providing the services must be one of the entities
described by the exemption. The requested records do not satisfy the criteria
of the exemption; therefore, the list of health insurance plans and the costs of
providing these as employee benefits may not be withheld pursuant to
Exemption (m).
Exemption (n)
Exemption (n) applies to:
records, including, but not limited to, blueprints, plans, policies,
procedures and schematic drawings, which relate to internal layout
and structural elements, security measures, emergency preparedness,
threat or vulnerability assessments, or any other records relating to
the security or safety of persons or buildings, structures, facilities,
utilities, transportation, cyber security or other infrastructure located
within the commonwealth, the disclosure of which, in the reasonable
judgment of the record custodian, subject to review by the supervisor
of public records under subsection (c) of section 10 of chapter 66, is
likely to jeopardize public safety or cyber security.
101
This exemption allows for the withholding of certain records which, if
released, will likely jeopardize public safety or cyber security. When
analyzing the applicability of Exemption (n), the SJC determined that the first
prong of this exemption examines “whether, and to what degree, the record
101
G. L. c. 4, § 7 (26)(n).
28
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sought resembles the records listed as examples in the statute;” specifically,
the “inquiry is whether, and to what degree, the record is one a terrorist
‘would find useful to maximize damage.’”
102
The second prong of Exemption (n) examines “the factual and contextual
support for the proposition that disclosure of the record is ‘likely to jeopardize
public safety.’”
103
The SJC further provides that “[b]ecause the records
custodian must exercise ‘reasonable judgment’ in making that determination,
the primary focus on review is whether the custodian has provided sufficient
factual heft for the supervisor of public records or the reviewing court to
conclude that a reasonable person would agree with the custodian’s
determination given the context of the particular case.” Id.
For example: Can a copy of a municipal blast design plan be withheld under
Exemption (n)?
Although the requested record may be contemplated by Exemption (n)
because a terrorist could use the information on the plan to inflict damage, a
records custodian would also need to provide “sufficient factual heft” to
establish how disclosure of the information in the plan is likely to jeopardize
public safety or cyber security. If the records custodian provides this factual
support, portions of this type of record can likely be withheld under
Exemption (n).
Exemption (o)
Exemption (o) applies to:
the home address, personal email address and home telephone number
of an employee of the judicial branch, an unelected employee of the
general court, an agency, executive office, department, board,
commission, bureau, division or authority of the commonwealth, or of
a political subdivision thereof or of an authority established by the
general court to serve a public purpose, in the custody of a
government agency which maintains records identifying persons as
falling within those categories; provided that the information may be
disclosed to an employee organization under chapter 150E, a
nonprofit organization for retired public employees under chapter
180, or a criminal justice agency as defined in section 167 of chapter
6.
104
For example: Would the address of a government employee found in payroll
records be public?
102
PETA, 477 Mass. at 289-90.
103
Id.
104
G. L. c. 4, § 7 (26)(o).
A Guide to the Massachusetts Public Records Law
29
Exemption (o) applies to the home address, personal email address or home
telephone number of government employees. For example, this information
could be redacted from records such as government payroll records and/or
emails.
Exemption (p)
Exemption (p) applies to:
the name, home address, personal email address and home telephone
number of a family member of a commonwealth employee, contained
in a record in the custody of a government agency which maintains
records identifying persons as falling within the categories listed in
subclause (o).
105
Similar to Exemption (o), this exemption allows the name, home address,
personal email address, and home telephone number of a family member of a
Commonwealth employee to be redacted.
Exemption (q)
Exemption (q) allows for the withholding of:
Adoption contact information and indices therefore of the adoption
contact registry established by section 31 of chapter 46.
106
The registry of vital records and statistics maintains a voluntary adoption
contact information registry for the purpose of connecting parents listed on the
initial birth certificate to any of their children who were adopted by others.
107
The adoption contact registry contains the addresses and other information
supplied by parents and adoptees necessary for one to contact the other. Any
contact information contained in the adoption contact registry, as well as
indices created from this registry, may be withheld under Exemption (q).
Exemption (r)
Exemption (r) applies to:
Information and records acquired under chapter 18C by the office of
the child advocate.
108
The records created and received by the Office of the Child Advocate
pursuant to Chapter 18C may be withheld under this exemption.
109
105
G. L. c. 4, § 7 (26)(p).
106
G. L. c. 4, § 7 (26)(q).
107
G. L. c. 46, § 31.
108
G. L. c. 4, § 7 (26)(r).
109
G. L. c. 18(c).
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Exemption (s)
Exemption (s) applies to:
trade secrets or confidential, competitively-sensitive or other
proprietary information provided in the course of activities conducted
by a governmental body as an energy supplier under a license granted
by the department of public utilities pursuant to section 1F of chapter
164, in the course of activities conducted as a municipal aggregator
under section 134 of said chapter 164 or in the course of activities
conducted by a cooperative consisting of governmental entities
organized pursuant to section 136 of said chapter 164, when such
governmental body, municipal aggregator or cooperative determines
that such disclosure will adversely affect its ability to conduct business
in relation to other entities making, selling or distributing electric
power and energy; provided, however, that this subclause shall not
exempt a public entity from disclosure required of a private entity so
licensed.
110
Exemption (s) relates to certain records of public utility providers.
Exemption (t)
Exemption (t) applies to:
statements filed under section 20C of chapter 32.
111
Members of public retirement boards are required by statute to file a statement
of financial interest with the Public Employee Retirement Administration
Commission. The statement of financial interest document is exempt from
disclosure under Exemption (t).
112
Exemption (u)
Exemption (u) applies to:
trade secrets or other proprietary information of the University of
Massachusetts, including trade secrets or proprietary information
provided to the University by research sponsors or private
concerns.
113
This exemption applies to certain records in the possession of the University
of Massachusetts.
110
G. L. c. 4, § 7 (26)(s).
111
G. L. c. 4, § 7 (26)(t).
112
See G. L. c. 32, § 20C.
113
G. L. c. 4, § 7 (26)(u).
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31
Exemption (v)
Exemption (v) applies to:
records disclosed to the health policy commission under subsections
(b) and (e) of section 8A of chapter 6D.
114
This exemption applies to certain records disclosed to the Health Policy
Commission.
114
G. L. c. 4, § 7 (26)(v).
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Attorney-Client Communications
In Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-50
(2007), the Supreme Judicial Court (SJC) held that confidential
communications between governmental entities and their legal counsel
undertaken for the purpose of obtaining legal advice or assistance are
protected under the normal rules of the attorney-client privilege.
A custodian claiming the attorney-client privilege under the Public Records
Law has the burden of not only proving the existence of an attorney-client
relationship, but also (1) that the communications were received from a client
during the course of the client’s search for legal advice from the attorney in
his or her capacity as such; (2) that the communications were made in
confidence; and (3) that the privilege as to these communications has not been
waived.
115
Disclosing attorney-client communications to a third party
generally undermines the privilege.
116
In assessing whether a custodian has properly withheld records based on the
claim of attorney-client privilege, the Supervisor of Records “shall require, as
part of the decision making process, that the agency or municipality provide a
detailed description of the record, including the names of the author and
recipients, the date, the substance of such record, and the grounds upon which
the attorney-client privilege is being claimed.”
117
Geographic Information Systems (GIS)
A GIS is a computer system designed to store, capture, analyze and display
geographically referenced information. Often, the information that comprises
Commonwealth or municipal GIS databases is submitted by private surveyors
and engineers who exercise intellectual property rights over nonfactual
portions of the materials.
While there are no Massachusetts court cases interpreting this issue, it is clear
that the legislature did not carve out specific exemptions from the
Massachusetts Public Records Law allowing protected intellectual property in
the custody of a governmental entity to be withheld from public
dissemination. The Public Records Law does not serve to preempt federal
intellectual property law, nor does the Public Records Law exonerate those
who violate intellectual property rights validly held by private individuals or
governmental entities once the public GIS records have been released. As a
precaution, records custodians of GIS records are encouraged to indicate on
115
Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007); see
also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that
the party seeking the attorney-client privilege has the burden to show the privilege applies).
116
Comm’r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009).
117
G. L. c. 66, § 10A(a).
A Guide to the Massachusetts Public Records Law
33
released GIS records that the information contained in the records may be
subject to intellectual property protections.
Agency Relationship
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.
Status as a Public Entity
The Supreme Judicial Court has developed a five factor test to determine
whether an organization is considered a “public entity” for purposes of the
Public Records Law.
118
The five factors are as follows:
1) the means by which the entity was created;
2) whether the entity performs an essentially governmental function;
3) whether the entity receives or expends public funds;
4) the involvement of private interests; and
5) the extent of control and supervision exercised by government
officials, agencies, or authorities over the entity.
119
The five factors of this test are cumulative, and no one factor is dispositive.
120
The first factor considered in this analysis is the means by which the entity
was created.
121
This factor requires the presence of some form of legislative
action underpinning the creation of the entity.
122
The second factor concerns whether the entity performs an “essentially
governmental function.”
123
118
See Massachusetts Bay Transp. Auth. Ret. Bd. v. State Ethics Comm’n (Board I), 414
Mass. 582, 589-91 (1993) (outlining the five-factor test); see also Globe Newspaper Co. v.
Massachusetts Bay Transp. Auth. Retirement Bd. (Board II), 416 Mass. 1007 (1993)
(applying the test in the context of the Public Records Law).
119
Board II at 1007; Board I at 587.
120
Board I at 587.
121
See Board I at 590.
122
Id. at 587, 589.
123
See id. at 590.
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The third factor examines whether the entity receives or expends public
funds.
124
The Supreme Judicial Court (Court) has stated that “receipt by an
entity of substantial funding from a State agency does not necessarily indicate
that the entity is a public instrumentality.”
125
The Court has also stated that
“analysis of this factor . . . should focus on the use of the public funds
received by the entity in question, taking into consideration the private
interests involved.”
126
The final two factors in this analysis relate to the extent of any involvement,
control, or supervision exercised by governmental officials, agencies, or
authorities over the entity.
127
124
Board I at 590.
125
Board I at 590.
126
Board I at 591.
127
See Board I at 591; Board II at 1007.
A Guide to the Massachusetts Public Records Law
35
Records Management
As the chief information officer for the Commonwealth, Secretary of the
Commonwealth William F. Galvin recognizes the importance of maintaining
records properly. With this understanding, the Secretary strongly encourages
the creation, adoption and implementation of a formal, written records
management program that includes specific standards for both paper and
electronic records.
The Records Management Unit (RMU) was created to provide records
management services and outreach to all state agencies and municipalities to
help them meet state record-keeping standards and requirements. The RMU
can provide agencies with retention schedules for specific records, as well as
information on proper disposal and destruction of records. If you need
additional information or assistance in creating a Records Management
Program, please contact the RMU at 617-727-2816.
Records Retention
It is the responsibility of government employees who create, receive and
maintain public records to ensure their safekeeping and availability to the
public until the retention period for the specific records series has expired.
There are two retention schedules: the Municipal Records Retention Schedule,
which applies to all records of municipal government in Massachusetts, and
the Statewide Schedule, which applies to all records of state agencies
including those of executive departments, constitutional offices, authorities,
independent agencies, and state records being managed by contracted service
providers.
State agencies must obtain the written permission of the Records Conservation
Board (RCB) prior to destroying certain records.
128
The RCB is empowered
“to require all departments of the Commonwealth to report to it what series of
records they hold, to set standards for the management and preservation of
such records, and to establish schedules for the destruction, in whole, or in
part, and transfer to the archives or another appropriate division within the
office of the state secretary, in whole, or in part, of records no longer needed
for current business.”
129
Municipalities must obtain the written permission of the Supervisor of
Records prior to destroying certain records.
130
Retention schedules for state agencies and municipalities, as well as
information on records management, including permission forms for disposal
128
G. L. c. 30, § 42.
129
Id.
130
G. L. c. 66, §§ 1, 8.
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of records, may be accessed through the Secretary of the Commonwealth’s
website. For the most up-to-date schedules and forms, please visit the RMU
website at http://www.sec.state.ma.us/arc/arcrmu/rmuidx.htm.
The RCB requires that each agency of the Commonwealth submit Form RCB-
4 on an annual basis. Similarly, municipalities must submit Form RMU-4.
These forms state the name and title of each agency’s or municipality’s
designated records management officer or Records Liaison Officer. These
forms are available online at www.sec.state.ma.us/arc/arcrmu/rmuidx.htm.
Electronic Records Storage
Records must be maintained according to the retention schedules, based on the
content of the record. Records creators are responsible for maintaining an
accurate, reliable, trustworthy, and accessible record for the complete required
retention period, regardless of format.
If a custodian chooses to digitize a paper record, it must ensure it can maintain
the digital file and provide appropriate access to it until the retention period is
met. Once digitized, provided there are no statutory requirements to retain the
record in a paper format, a custodian may destroy the paper record without
requesting permission from the RCB or Supervisor of Records. A custodian
will need permission to destroy or delete the final, digitized copy of the
record. Please note, some paper records may have inherent evidentiary or
historical value that a custodian may want to retain them even after
digitization.
131
The RCB implemented Electronic Records Management Guidelines to assist
records custodians in maintaining electronic records.
132
Records custodians
are encouraged to review the Statewide Records Retention Schedule or the
Municipal Records Retention Manual for more information on retention
periods for records. If you have any questions regarding electronic records and
storage, please do not hesitate to contact the RMU at 617-727-2816.
131
See Massachusetts Archives,
https://www.sec.state.ma.us/arc/arcpdf/Frequently_Asked_Questions_Digital.pdf (last
visited April 11, 2019).
132
See Massachusetts Archives,
www.sec.state.ma.us/arc/arcpdf/Electronic_Records_Guidelines.pdf (last visited April 11,
2019).
A Guide to the Massachusetts Public Records Law
37
Maintenance and Storage of Public Records
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.
133
The Supervisor of Records is responsible for ensuring that the records of the
Commonwealth and municipalities are maintained and stored as required by
law.
134
In accordance with this duty, the following procedures have been
established to ensure security of and access to public records.
1. Records Access Officers (RAOs)
RAOs shall assist the custodian in preserving public records in
accordance with all applicable laws, rules, regulations and retention
schedules.
135
2. Original Records Removed from Municipal Offices
a. Whenever original public records are removed from municipal
offices for use in the regular course of business to a private office
or home, they shall be stored in fire-resistant devices and safes
provided by the municipality.
136
b. If fire-resistant storage outside of the municipal building cannot be
ensured, then no original records may be removed. However, the
RAO may create copies of records for use in a private office or
home.
3. Original Records Created Outside of Municipal Offices
a. Whenever original public records are created outside the municipal
offices, they shall be transferred on a regular and frequent basis to
secure storage in the municipal building.
b. If secure storage is available in an individual’s private office or
home, then copies of the records shall be maintained in the
municipal building, with the originals stored in secure storage at
the records custodian’s private office or home.
4. Availability of RAO
Whenever it is necessary to work, or to keep original public records, in
a location other than the municipal building, RAOs shall be available
133
G. L. c. 66, § 10(a); see also Reinstein, 378 Mass. at 289-90.
134
See G. L. c. 66, § 1.
135
G. L. c. 66, § 6A(b); 950 C.M.R. 32.04(5).
136
G. L. c. 66, § 11.
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during regular posted office hours, at a location convenient to the
general public, for inspection and copying of the public records.
Please note that in such situations, copies of the public records must
also be maintained in the municipal building, in accordance with
paragraph 2(b), above.
In those instances in which the governmental entity does not have
regular business hours, a written notice must be posted in a
conspicuous location, listing the name, position, address and telephone
number of the person to be contacted to obtain access to public
records.
137
5. Transfer of Public Records upon Termination of Duties as
Government Employee
a. Whenever a government employee relinquishes his office or
terminates his duties, he must deliver over to his successor all such
public records that he is not authorized by law to retain.
138
These procedures are designed to ensure the safekeeping of public records so
that compliance with the Massachusetts Public Records Law by governmental
entities is best accomplished.
137
950 C.M.R. 32.04(4).
138
See G. L. c. 66, § 14.
A Guide to the Massachusetts Public Records Law
39
Frequently Asked Questions
Below are answers to Frequently Asked Questions regarding the Public
Records Law. For additional legal and practical considerations, please refer to
prior portions of this guide that discuss these matters.
What is the difference between the federal Freedom of Information Act and
the Massachusetts Public Records Law?
The federal Freedom of Information Act is a statute that applies to federal
records. The Massachusetts Public Records Law applies to records created by
or in the custody of a state or local agency, board or other government entity.
Who can help me with questions regarding the Public Records Law?
The Division of Public Records (Division) provides an “attorney of the day”
to assist any person seeking information regarding the Public Records Law.
The hours of operation for the Division are Monday-Friday, with the
exception of holidays, from 8:45 a.m. to 5:00 p.m. The telephone number for
the Division is (617) 727-2832, and the email address is [email protected]tate.ma.us.
What is a “public record?”
Every record that is made or received by a government entity or employee is
presumed to be a public record unless a specific statutory exemption permits
or requires it to be withheld in whole or in part.
The legislature created specific statutory exemptions and the courts have
recognized common law exemptions, such as the attorney-client privilege.
These exemptions permit the agency or municipality to withhold a record
from the public. The exemptions to the Public Records Law are described in
this guide.
How do I find the records I seek?
A person seeking access to government records must request them directly
from the municipality or agency that is the custodian of the requested records.
The Division of Public Records is not a warehouse for government records.
The only records kept in the Division are those that are essential to the
business operations of the Division or those that are provided to the Division
as required by statute.
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A Guide to the Massachusetts Public Records Law
Does the Public Records Law apply to court, legislative or federal records?
The Public Records Law does not apply to records held by federal agencies,
the legislature or the courts of the Commonwealth. Accordingly, the
Supervisor of Records is unable to assist requestors seeking such records.
What is a Records Access Officer?
A Records Access Officer (RAO) is the person responsible for responding to
requests for public records. Information on how to contact an RAO is usually
available on the website for the applicable municipal or state entity holding
the records sought by requestors.
What is a records custodian?
A records custodian means any governmental entity that makes or receives
public records.
How do I obtain copies of public records?
To obtain a copy of a record, you must make a request to the RAO for the
municipal or state agency that you believe has records you are seeking.
What do I do if my request is denied?
An RAO must respond to your request as determined by the Public Records
Law. If the RAO fails to respond or denies a request, a requestor may appeal
the matter to the Supervisor of Records (Supervisor) within ninety days.
Under the Public Records Access Regulations, all appeals to the Supervisor
must include a copy of the original request, any response by the RAO and a
statement indicating the reason for the appeal. The requestor must also
provide a copy of the appeal petition to the RAO.
May I also go to court to seek public records?
A requestor may also commence a civil action in superior court to enforce the
requirements of the Public Records Law. Where applicable, the superior court
may award reasonable attorney’s fees and costs in cases where the requestor
obtains relief.
My appeal was closed because I did not provide the necessary information.
What do I do now?
The Supervisor may close an appeal without a finding if a requestor fails to
provide a copy of the original request, the response from the RAO, does not
provide a copy of the petition for appeal to the RAO, or fails to provide a
detailed description of the basis of the appeal.
A Guide to the Massachusetts Public Records Law
41
In such cases, a requestor may re-submit the appeal once the above
requirements have been met.
What are the requirements for an RAO’s response to a public records
request?
An RAO must respond to a request within 10 business days. This response
must be in writing and include a variety of components depending on the
circumstances; for example, the response can offer to provide records, include
a fee estimate for the provision of records, or deny access to records.
If an RAO is denying access to a record, it must identify any records,
categories of records or portions of records that the agency or municipality
intends to withhold, and provide the specific reasons for such withholding,
including the specific exemption or exemptions upon which the withholding is
based. Any denial must include instructions on how to appeal to the
Supervisor of Records.
Must my request be in writing, and do I need to use a specific form?
A written request is not required but is strongly recommended. An oral
request made in person is permitted. An RAO is not permitted to require a
written request, but may write an oral request on its own form to assist in
prompt response. An RAO may not require a requestor to use a specific form,
however, it may suggest one.
To appeal an RAO’s response to the Supervisor, however, a request must be
in writing.
May I appeal a failure to answer a question?
The Public Records Law only applies to records. An RAO is not required by
the Public Records Law to answer questions or create a record in response to a
request; however, an RAO must provide any records that exist that respond to
a question.
May an RAO charge a fee for producing public records?
An RAO may charge and recover a reasonable fee for producing a requested
record. If a fee is being assessed to produce records, the Public Records
Regulations require that an RAO provides a detailed, written, good faith
estimate for the cost of complying with a public record request.
An RAO may not charge a fee if the RAO did not provided a respone to the
requestor within 10 business days.
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Agencies shall not assess a fee for the first 4 hours of time spent searching for,
compiling, segregating, redacting and reproducing a requested record.
Municipalities with a population of over 20,000 shall not assess a fee for the
first 2 hours of time spent searching for, compiling, segregating, redacting and
reproducing a requested record. Municipalities with a population of 20,000
and under are permitted to charge for the first 2 hours of time spent searching
for, compiling, segregating, redacting and reproducing a requested record.
The hourly rate may not be greater than the prorated hourly wage of the
lowest paid employee who is capable of performing the task. Generally, an
RAO is not permitted to charge an hourly rate in excess of $25.00 per hour to
search for records. Municipal RAOs may petition the Supervisor for
permission to charge a fee in excess of $25.00 per hour.
Agency and municipal RAOs may petition the Supervisor for permission to
assess a fee for time spent segregating and redacting.
The fee estimate must provide the hourly rate and the number of hours
required for each portion of the task. An RAO may not recover fees associated
with record organization.
If a requestor wishes to review records in the records custodian’s office but
does not require copies, a records custodian may charge and recover a fee for
his or her time spent searching for and redacting the records, provided the
redactions are required by law or approved by the Supervisor.
An agency or municipality is permitted to require payment of the estimated
fee before commencing work.
All agencies and municipalities are strongly urged to waive the fees associated
with access to public records, but are not required to do so under the law.
What is the cost for copies of public records; what about electronic records?
Absent a specifically identified statute or regulation, an RAO may charge no
more than $0.05 per page for single and double-sided black and white paper
copies or computer printouts.
The Public Records Law and its Regulations apply to all Massachusetts
government records, regardless of form, and regardless of the location of the
records.
Provision of public records in electronic form is preferred, where available.
An RAO is not permitted to assess a copying fee for electronic records. The
$0.05 fee applies only to paper copies of records.
A Guide to the Massachusetts Public Records Law
43
When must minutes of an open meeting be made available to the public?
The Open Meeting Law, applicable to public bodies such as select boards for
towns, is enforced by the Office of the Attorney General, Division of Open
Government.
139
Any questions regarding the content of minutes, requirements
to keep minutes or any procedural aspects of the Open Meeting Law should be
addressed to the Division of Open Government.
140
Does a requestor have greater right of access to records if he is the subject
of a record?
Under the Public Records Law, every requestor is treated equally; therefore,
even a person who is the subject of the record is not granted any greater
access right than any other person. Access to a record requested pursuant to
the Public Records Law rests on the content of the record.
Some statutes and regulations allow requestors to obtain records in a manner
that does not require a request under the Public Records Law.
A list of statutes limiting access to public records is found in the back of this
guide. This list includes student records, criminal offender record information,
and other records the access to which is limited by law.
Is a requestor required to disclose the intended use of the public record
requested?
With the possible exception of situations where the RAO is determining
whether the records are being requested for a commercial purpose or
determining whether to grant a fee waiver, a records custodian may not ask a
requestor the reason for the request or the intended use of the requested
records.
141
How should an RAO respond to an unclear request?
RAOs must help the requestor to determine the precise record or records
responsive to a request; however, a requestor must provide a reasonable
description of the requested records. If a request is unclear the RAO is
expected to seek clarification from the requestor.
139
G. L. c. 30A, §§ 18-25.
140
www.mass.gov/ago/bureaus/government/the-division-of-open-government/.
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Is there a deadline for appealing the RAO’s response to the Supervisor of
Records?
An appeal of a response by an RAO must be made within 90 calendar days of
the date of the response by a records access officer or the date of the request in
situations where the RAO did not respond.
Are RAOs required to forward a request for records not in their possession?
A government entity may have multiple RAOs that are assigned to a specific
division or department within that entity. A request to one RAO may include
records of another division or department within the RAOs’ agency or
municipality. RAOs must use their superior knowledge of the records to
ensure that a request for records is delivered to the appropriate party.
Therefore, an RAO is expected to forward such requests to the appropriate
parties within its municipality or agency.
If the records are not within the possession, custody, or control of the agency
or municipality that the RAO serves, the RAO must identify the agency or
municipality that may have the public records sought, if known.
A Guide to the Massachusetts Public Records Law
45
Appendix
The provisions in this book are not the official versions of the Massachusetts
General Laws (M.G.L.) or Code of Massachusetts Regulations (C.M.R.).
Reasonable efforts have been undertaken to assure the validity of the
information provided at the time of publishing; however, do not rely on this
information without first consulting an official edition of the M.G.L. or
C.M.R.
Public Records Law
G. L. c. 4, § 7(26)
Twenty–sixth, “Public records” shall mean 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 agency,
executive office, department, board, commission, bureau, division or authority
of the commonwealth, or of any political subdivision thereof, or of any
authority established by the general court to serve a public purpose, or 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 section 1 of chapter 32, unless such
materials or data fall within the following exemptions in that they are:
(a) specifically or by necessary implication exempted from disclosure by
statute;
(b) related solely to internal personnel rules and practices of the government
unit, provided however, that such records shall be withheld only to the extent
that proper performance of necessary governmental functions requires such
withholding;
(c) personnel and medical files or information and any other materials or data
relating to a specifically named individual, the disclosure of which may
constitute an unwarranted invasion of personal privacy; provided, however,
that this subclause shall not apply to records related to a law enforcement
misconduct investigation.
(d) inter–agency or intra–agency memoranda or letters relating to policy
positions being developed by the agency; but this subclause shall not apply to
reasonably completed factual studies or reports on which the development of
such policy positions has been or may be based;
(e) notebooks and other materials prepared by an employee of the
commonwealth which are personal to him and not maintained as part of the
files of the governmental unit;
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A Guide to the Massachusetts Public Records Law
(f) investigatory materials necessarily compiled out of the public view by law
enforcement or other investigatory officials the disclosure of which materials
would probably so prejudice the possibility of effective law enforcement that
such disclosure would not be in the public interest;
(g) trade secrets or commercial or financial information voluntarily provided
to an agency for use in developing governmental policy and upon a promise of
confidentiality; but this subclause shall not apply to information submitted as
required by law or as a condition of receiving a governmental contract or
other benefit;
(h) proposals and bids to enter into any contract or agreement until the time
for the opening of bids in the case of proposals or bids to be opened publicly,
and until the time for the receipt of bids or proposals has expired in all other
cases; and inter–agency or intra–agency communications made in connection
with an evaluation process for reviewing bids or proposals, prior to a decision
to enter into negotiations with or to award a contract to, a particular person;
(i) appraisals of real property acquired or to be acquired until (1) a final
agreement is entered into; or (2) any litigation relative to such appraisal has
been terminated; or (3) the time within which to commence such litigation has
expired;
(j) the names and addresses of any persons contained in, or referred to in, any
applications for any licenses to carry or possess firearms issued pursuant to
chapter one hundred and forty or any firearms identification cards issued
pursuant to said chapter one hundred and forty and the names and addresses
on sales or transfers of any firearms, rifles, shotguns, or machine guns or
ammunition therefor, as defined in said chapter one hundred and forty and the
names and addresses on said licenses or cards;
(k) [Stricken.]
(l) questions and answers, scoring keys and sheets and other materials used to
develop, administer or score a test, examination or assessment instrument;
provided, however, that such materials are intended to be used for another
test, examination or assessment instrument;
(m) contracts for hospital or related health care services between (i) any
hospital, clinic or other health care facility operated by a unit of state, county
or municipal government and (ii) a health maintenance organization
arrangement approved under chapter one hundred and seventy–six I, a
nonprofit hospital service corporation or medical service corporation
organized pursuant to chapter one hundred and seventy–six A and chapter one
hundred and seventy–six B, respectively, a health insurance corporation
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47
licensed under chapter one hundred and seventy–five or any legal entity that is
self insured and provides health care benefits to its employees.
(n) records, including, but not limited to, blueprints, plans, policies,
procedures and schematic drawings, which relate to internal layout and
structural elements, security measures, emergency preparedness, threat or
vulnerability assessments, or any other records relating to the security or
safety of persons or buildings, structures, facilities, utilities, transportation,
cyber security or other infrastructure located within the commonwealth, the
disclosure of which, in the reasonable judgment of the record custodian,
subject to review by the supervisor of public records under subsection (c) of
section 10 of chapter 66, is likely to jeopardize public safety or cyber security.
(o) the home address, personal email address and home telephone number of
an employee of the judicial branch, an unelected employee of the general
court, an agency, executive office, department, board, commission, bureau,
division or authority of the commonwealth, or of a political subdivision
thereof or of an authority established by the general court to serve a public
purpose, in the custody of a government agency which maintains records
identifying persons as falling within those categories; provided that the
information may be disclosed to an employee organization under chapter
150E, a nonprofit organization for retired public employees under chapter
180, or a criminal justice agency as defined in section 167 of chapter 6.
(p) the name, home address, personal email address and home telephone
number of a family member of a commonwealth employee, contained in a
record in the custody of a government agency which maintains records
identifying persons as falling within the categories listed in subclause (o).
(q) Adoption contact information and indices therefore of the adoption contact
registry established by section 31 of chapter 46.
(r) Information and records acquired under chapter 18C by the office of the
child advocate.
(s) trade secrets or confidential, competitively-sensitive or other proprietary
information provided in the course of activities conducted by a governmental
body as an energy supplier under a license granted by the department of
public utilities pursuant to section 1F of chapter 164, in the course of activities
conducted as a municipal aggregator under section 134 of said chapter 164 or
in the course of activities conducted by a cooperative consisting of
governmental entities organized pursuant to section 136 of said chapter 164,
when such governmental body, municipal aggregator or cooperative
determines that such disclosure will adversely affect its ability to conduct
business in relation to other entities making, selling or distributing electric
power and energy; provided, however, that this subclause shall not exempt a
public entity from disclosure required of a private entity so licensed.
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(t) statements filed under section 20C of chapter 32.
(u) trade secrets or other proprietary information of the University of
Massachusetts, including trade secrets or proprietary information provided to
the University by research sponsors or private concerns.
(v) records disclosed to the health policy commission under subsections (b)
and (e) of section 8A of chapter 6D.
Any person denied access to public records may pursue the remedy provided
for in section 10A of chapter sixty–six.
Records Access Officers
G. L. c. 66, § 6A
(a) Each agency and municipality shall designate 1 or more employees as
records access officers. In a municipality, the municipal clerk, or the clerk's
designees, or any designee of a municipality that the chief executive officer of
the municipality may appoint, shall serve as records access officers. For the
purposes of this chapter the term "agency'' shall mean any entity, other than a
municipality, that is identified in clause twenty-sixth of section 7 of chapter 4
as possessing "public records,'' as defined therein.
(b) A records access officer shall coordinate an agency's or a municipality's
response to requests for access to public records and shall facilitate the
resolution of such requests by the timely and thorough production of public
records. Each records access officer shall:
(i) assist persons seeking public records to identify the records sought;
(ii) assist the custodian of records in preserving public records in
accordance with all applicable laws, rules, regulations and schedules;
and
(iii) prepare guidelines that enable a person seeking access to public
records in the custody of the agency or municipality to make informed
requests regarding the availability of such public records electronically
or otherwise.
Guidelines shall be updated periodically and shall include a list of
categories of public records maintained by the agency or municipality.
Each agency and municipality that maintains a website shall post the
guidelines on its website.
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49
(c) Each agency and municipality shall post in a conspicuous location at its
offices and on its website, if any, the name, title, business address, business
telephone number, and business email address of each records access officer.
The designation of 1 or more records access officers shall not be construed to
prohibit employees who have been previously authorized to make public
records or information available to the public from continuing to do so. Any
employee responsible for making public records available shall provide the
records in accordance with this chapter.
(d) The records access officer shall provide the public records to a requestor
by electronic means unless the record is not available in electronic form or the
requestor does not have the ability to receive or access the records in a usable
electronic form. The records access officer shall, to the extent feasible,
provide the public record in the requestor's preferred format or, in the absence
of a preferred format, in a searchable, machine readable format. The records
access officer shall not be required to create a new public record in order to
comply with a request, provided that furnishing a segregable portion of a
public record shall not be deemed to be creation of a new record. If the public
record requested is available on a public website pursuant to subsection (b) of
section 19 of this chapter, section 14C of chapter 7 or any other appropriately
indexed and searchable public website, the records access officer may furnish
the public record by providing reasonable assistance in locating the requested
record on the public website. An electronically produced document submitted
to an agency or municipality for use in deliberations by a public body shall be
provided in an electronic format at the time of submission.
(e) Each records access officer of an agency shall document each request for
public records submitted to the records access officer. The records access
officer shall document:
(i) the nature of the request and the date on which the request was
received;
(ii) the date on which a response is provided to the requestor;
(iii) the date on which a public record is provided to the requestor;
(iv) the number of hours required to fulfill the request;
(v) fees charged to the person making the request, if any;
(vi) petitions submitted under clause (iv) of subsection (d) of section
10;
(vii) requests appealed under section 10A;
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(viii) the time required to comply with supervisor of records orders
under said section 10A; and
(ix) the final adjudication of any court proceedings under subsection
(d) of said section 10A.
Nothing in this subsection shall require a records access officer to disclose
information otherwise protected from public access. The secretary of the
commonwealth shall prescribe a form for recording such information and shall
annually collect the information from the records access officers, post the
information on a website maintained by the secretary and report the same to
the clerks of the House of Representatives and Senate.
(f) The supervisor of records shall document appeals filed under section 10A,
including:
(i) the date the request was submitted to the records access officer;
(ii) the date the records access officer responded;
(iii) the amount of fees charged to the requestor, if any;
(iv) petitions made pursuant to clause (iv) of subsection (d) of section
10;
(v) the time required to comply with supervisor of records orders
under said section 10A; and
(vi) the final adjudication of any court proceedings under subsection
(d) of said section 10A.
Nothing in this subsection shall require the supervisor to disclose information
otherwise protected from public access. The secretary of the commonwealth
shall prescribe a form for recording such information and shall post the
information on a website maintained by the secretary.
Public Inspection and Copies of Records
G. L. c. 66, § 10
(a) A records access officer appointed pursuant to section 6A, or a designee,
shall at reasonable times and without unreasonable delay permit inspection or
furnish a copy of any public record as defined in clause twenty-sixth of
section 7 of chapter 4, or any segregable portion of a public record, not later
than 10 business days following the receipt of the request, provided that:
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51
(i) the request reasonably describes the public record sought;
(ii) the public record is within the possession, custody or control of the
agency or municipality that the records access officer serves; and
(iii) the records access officer receives payment of a reasonable fee as
set forth in subsection (d).
A request for public records may be delivered to the records access
officer by hand or via first class mail at the record officer’s business
address, or via electronic mail to the address posted by the agency or
municipality that the records access officer serves.
(b) If the agency or municipality does not intend to permit inspection or
furnish a copy of a requested record, or the magnitude or difficulty of the
request, or of multiple requests from the same requestor, unduly burdens the
other responsibilities of the agency or municipality such that the agency or
municipality is unable to do so within the timeframe established in subsection
(a), the agency or municipality shall inform the requestor in writing not later
than 10 business days after the initial receipt of the request for public records.
The written response shall be made via first class or electronic mail and shall:
(i) confirm receipt of the request;
(ii) identify any public records or categories of public records sought
that are not within the possession, custody, or control of the agency or
municipality that the records access officer serves;
(iii) identify the agency or municipality that may be in possession,
custody or control of the public record sought, if known;
(iv) identify any records, categories of records or portions of records
that the agency or municipality intends to withhold, and provide the
specific reasons for such withholding, including the specific
exemption or exemptions upon which the withholding is based,
provided that nothing in the written response shall limit an agency’s or
municipality’s ability to redact or withhold information in accordance
with state or federal law;
(v) identify any public records, categories of records, or portions of
records that the agency or municipality intends to produce, and
provide a detailed statement describing why the magnitude or
difficulty of the request unduly burdens the other responsibilities of the
agency or municipality and therefore requires additional time to
produce the public records sought;
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(vi) identify a reasonable timeframe in which the agency or
municipality shall produce the public records sought; provided, that for
an agency, the timeframe shall not exceed 15 business days following
the initial receipt of the request for public records and for a
municipality the timeframe shall not exceed 25 business
days following the initial receipt of the request for public records; and
provided further, that the requestor may voluntarily agree to a response
date beyond the timeframes set forth herein;
(vii) suggest a reasonable modification of the scope of the request or
offer to assist the requestor to modify the scope of the request if doing
so would enable the agency or municipality to produce records sought
more efficiently and affordably;
(viii) include an itemized, good faith estimate of any fees that may be
charged to produce the records; and
(ix) include a statement informing the requestor of the right of appeal
to the supervisor of records under subsection (a) of section 10A and
the right to seek judicial review of an unfavorable decision by
commencing a civil action in the superior court under subsection (c) of
section10A.
(c) If the magnitude or difficulty of a request, or the receipt of multiple
requests from the same requestor, unduly burdens the other responsibilities of
the agency or municipality such that an agency or municipality is unable to
complete the request within the time provided in clause (vi) of subsection (b),
a records access officer may, as soon as practical and within 20 business days
after initial receipt of the request, or within 10 business days after receipt of a
determination by the supervisor of public records that the requested record
constitutes a public record, petition the supervisor of records for an extension
of the time for the agency or municipality to furnish copies of the requested
record, or any portion of the requested record, that the agency or municipality
has within its possession, custody or control and intends to furnish. The
records access officer shall, upon submitting the petition to the supervisor of
records, furnish a copy of the petition to the requestor. Upon a showing of
good cause, the supervisor of records may grant a single extension to an
agency not to exceed 20 business days and a single extension to a
municipality not to exceed 30 business days. In determining whether the
agency or municipality has established good cause, the supervisor of records
shall consider, but shall not be limited to considering:
(i) the need to search for, collect, segregate or examine records;
(ii) the scope of redaction required to prevent unlawful disclosure;
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(iii) the capacity or the normal business hours of operation of the
agency or municipality to produce the request without the extension;
(iv) efforts undertaken by the agency or municipality in fulfilling the
current request and previous requests;
(v) whether the request, either individually or as part of a series of
requests from the same requestor, is frivolous or intended to harass or
intimidate the agency or municipality; and
(vi) the public interest served by expeditious disclosure.
If the supervisor of records determines that the request is part of a series of
contemporaneous requests that are frivolous or designed to intimidate or
harass, and the requests are not intended for the broad dissemination of
information to the public about actual or alleged government activity, the
supervisor of records may grant a longer extension or relieve the agency or
municipality of its obligation to provide copies of the records sought. The
supervisor of records shall issue a written decision regarding a petition
submitted by a records access officer under this subsection within 5 business
days following receipt of the petition. The supervisor of records shall provide
the decision to the agency or municipality and the requestor and shall inform
the requestor of the right to seek judicial review of an unfavorable decision by
commencing a civil action in the superior court.
(d) A records access officer may assess a reasonable fee for the production of
a public record except those records that are freely available for public
inspection. The reasonable fee shall not exceed the actual cost of reproducing
the record. Unless expressly provided for otherwise, the fee shall be
determined in accordance with the following:
(i) the actual cost of any storage device or material provided to a
person in response to a request for public records under subsection (a)
may be included as part of the fee, but the fee assessed for standard
black and white paper copies or printouts of records shall not exceed 5
cents per page, for both single and double-sided black and white
copies or printouts;
(ii) if an agency is required to devote more than 4 hours of employee
time to search for, compile, segregate, redact or reproduce the record
or records requested, the records access officer may also include as
part of the fee an hourly rate equal to or less than the hourly rate
attributed to the lowest paid employee who has the necessary skill
required to search for, compile, segregate, redact or reproduce a record
requested, but the fee (A) shall not be more than $25 per hour; (B)
shall not be assessed for the first 4 hours of work performed; and (C)
shall not be assessed for time spent segregating or redacting records
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unless such segregation or redaction is required by law or approved by
the supervisor of records under clause (iv);
(iii) if a municipality is required to devote more than 2 hours of
employee time to search for, compile, segregate, redact or reproduce a
record requested, the records access officer may include as part of the
fee an hourly rate equal to or less than the hourly rate attributed to the
lowest paid employee who has the necessary skill required to search
for, compile, segregate, redact or reproduce the record requested but
the fee (A) shall not be more than $25 per hour unless such rate is
approved by the supervisor of records under clause (iv); (B) shall not
be assessed for the first 2 hours of work performed where the
responding municipality has a population of over 20,000 people; and
(C) shall not be assessed for time spent segregating or redacting
records unless such segregation or redaction is required by law or
approved by the supervisor of records under clause (iv);
(iv) the supervisor of records may approve a petition from an agency
or municipality to charge for time spent segregating or redacting, or a
petition from a municipality to charge in excess of $25 per hour, if the
supervisor of records determines that (A) the request is for a
commercial purpose; or (B) the fee represents an actual and good faith
representation by the agency or municipality to comply with the
request, the fee is necessary such that the request could not have been
prudently completed without the redaction, segregation or fee in
excess of $25 per hour and the amount of the fee is reasonable and the
fee is not designed to limit, deter or prevent access to requested public
records; provided, however, that:
1. in making a determination regarding any such petition, the
supervisor of records shall consider the public interest served
by limiting the cost of public access to the records, the
financial ability of the requestor to pay the additional or
increased fees and any other relevant extenuating
circumstances;
2. an agency or municipality, upon submitting a petition
under this clause, shall furnish a copy of the petition to the
requestor;
3. the supervisor of records shall issue a written
determination with findings regarding any such petition within
5 business days following receipt of the petition by the
supervisor of public records; and
4. the supervisor of records shall provide the determination to
the agency or municipality and the requestor and shall inform
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55
the requestor of the right to seek judicial review of an
unfavorable decision by commencing a civil action in the
superior court;
(v) the records access officer may waive or reduce the amount of any
fee charged under this subsection upon a showing that disclosure of a
requested record is in the public interest because it is likely to
contribute significantly to public understanding of the operations or
activities of the government and is not primarily in the commercial
interest of the requestor, or upon a showing that the requestor lacks the
financial ability to pay the full amount of the reasonable fee;
(vi) the records access officer may deny public records requests from a
requester who has failed to compensate the agency or municipality for
previously produced public records;
(vii) the records access officer shall provide a written notification to
the requester detailing the reasons behind the denial, including an
itemized list of any balances attributed to previously produced records;
(viii) a records access officer may not require the requester to specify
the purpose for a request, except to determine whether the records are
requested for a commercial purpose or whether to grant a request for a
fee waiver; and
(ix) as used in this section “commercial purpose” shall mean the sale
or resale of any portion of the public record or the use of information
from the public record to advance the requester’s strategic business
interests in a manner that the requester can reasonably expect to make
a profit, and shall not include gathering or reporting news or gathering
information to promote citizen oversight or further the understanding
of the operation or activities of government or or academic, scientific,
journalistic or public research or education.
(e) A records access officer shall not charge a fee for a public record unless
the records access officer responded to the requestor within 10 business days
under subsection (b).
(f) As used in this section, “employee time” means time required by
employees or necessary vendors, including outside legal counsel, technology
and payroll consultants or others as needed by the municipality.
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Administrative and Judicial Remedies
G. L. c. 66, § 10A
(a) If an agency or municipality fails to comply with a requirement of section
10 or issues a response the requestor believes in violation of section 10, the
person who submitted the initial request for public records may petition the
supervisor of records for a determination as to whether a violation has
occurred. In assessing whether a violation has occurred, the supervisor of
records may inspect any record or copy of a record in camera; provided,
however, that where a record has been withheld on the basis of a claim of the
attorney-client privilege, the supervisor of records shall not inspect the record
but shall require, as part of the decision making process, that the agency or
municipality provide a detailed description of the record, including the names
of the author and recipients, the date, the substance of such record, and the
grounds upon which the attorney-client privilege is being claimed. If an
agency or municipality elects to provide a record, claimed to be subject to the
attorney-client privilege, to the supervisor of records for in camera inspection,
said inspection shall not waive any legally applicable privileges, including
without limitation, the attorney- client privilege and the attorney work product
privilege. The supervisor of records shall issue a written determination
regarding any petition submitted in accordance with this section not later than
10 business days following receipt of the petition by the supervisor of records.
Upon a determination by the supervisor of records that a violation has
occurred, the supervisor of records shall order timely and appropriate relief. A
requestor, aggrieved by an order issued by the supervisor of records or upon
the failure of the supervisor of records to issue a timely determination, may
obtain judicial review only through an action in superior court seeking relief
in the nature of certiorari under section 4 of chapter 249 and as prescribed in
subsection (d).
(b) If an agency or municipality refuses or fails to comply with an order issued
by the supervisor of records, the supervisor of records may notify the attorney
general who, after consultation with the supervisor of records, may take
whatever measures the attorney general considers necessary to ensure
compliance. If the attorney general files an action to compel compliance, the
action shall be filed in Suffolk superior court with respect to state agencies
and, with respect to municipalities, in the superior court in the county in
which the municipality is located. The attorney general shall designate an
individual within the office of the attorney general to serve as a primary point
of contact for the supervisor of records. In addition to any other duties the
attorney general may impose, the designee shall serve as a primary point of
contact within the office of the attorney general regarding notice from the
supervisor of records that an agency or municipality has refused or failed to
comply with an order issued by the supervisor of records.
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(c) Notwithstanding the procedure in subsections (a) or (b), a requestor may
initiate a civil action to enforce the requirements of this chapter. Any action
under this subsection shall be filed in Suffolk superior court with respect to
agencies and, with respect to municipalities, in the superior court in the county
in which the municipality is located. The superior court shall have available
all remedies at law or in equity; provided, however, that any damages awarded
shall be consistent with subsection (d).
(d)(1) In any action filed by a requestor pursuant to this section:
(i) the superior court shall have jurisdiction to enjoin agency or
municipal action;
(ii) the superior court shall determine the propriety of any agency or
municipal action de novo and may inspect the contents of any
defendant agency or municipality record in camera, provided,
however, that the in camera review shall not waive any legally
applicable privileges, including without limitation, the attorney-client
privilege and the attorney work product privilege;
(iii) the superior court shall, when feasible, expedite the proceeding;
(iv) a presumption shall exist that each record sought is public and the
burden shall be on the defendant agency or municipality to prove, by a
preponderance of the evidence, that such record or portion of the
record may be withheld in accordance with state or federal law.
(2) The superior court may award reasonable attorney fees and costs in any
case in which the requester obtains relief through a judicial order, consent
decree, or the provision of requested documents after the filing of a
complaint. There shall be a presumption in favor of an award of fees and
costs unless the agency or municipality establishes that:
(i) the supervisor found that the agency or municipality did not violate
this chapter;
(ii) the agency or municipality reasonably relied upon a published
opinion of an appellate court of the commonwealth based on
substantially similar facts;
(iii) the agency or municipality reasonably relied upon a published
opinion by the attorney general based on substantially similar facts;
(iv) the request was designed or intended to harass or intimidate; or
(v) the request was not in the public interest and made for a
commercial purpose unrelated to disseminating information to the
public about actual or alleged government activity.
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If the superior court determines that an award of reasonable attorney
fees or costs is not warranted, the judge shall issue written findings
specifying the reasons for the denial.
(3) If the superior court awards reasonable attorneys' fees and other
litigation costs reasonably incurred to the requestor, it shall order the
agency or municipality to waive any fee assessed under subsection (d) of
section 10. If the superior court does not award reasonable attorneys' fees
and other litigation costs reasonably incurred to the requestor, it may order
the agency or municipality to waive any fee assessed under said
subsection (d) of said section 10. Whether the superior court determines to
waive any fee assessed under said subsection (d) of said section 10, it shall
issue findings specifying the basis for such decision.
(4) If a requestor has obtained judgment in superior court in a case under
this section and has demonstrated that the defendant agency or
municipality, in withholding or failing to timely furnish the requested
record or any portion of the record or in assessing an unreasonable fee, did
not act in good faith, the superior court may assess punitive damages
against the defendant agency or municipality in an amount not less than
$1,000 nor more than $5,000, to be deposited into the Public Records
Assistance Fund established in section 35DDD of chapter 10.
(e) Notwithstanding any other provision of this chapter, the attorney general
may, at any time, file a complaint in Suffolk superior court with respect to
agencies and, with respect to municipalities, in the superior court in the county
in which the municipality is located, to ensure compliance with this chapter
and may further intervene as of right in any action filed in accordance with
this section. In any action filed or in which the attorney general has intervened
under this subsection, paragraphs (1) and (4) of subsection (d) shall apply and
any public records the court orders produced shall be provided without a fee.
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Public Records Regulations
950 CMR 32.00: PUBLIC RECORDS ACCESS
Section
32.01: Scope and Purpose
32.02: Definitions
32.03: General Provisions
32.04: Records Access Officers
32.05: Additional Records Access Officer Responsibilities
32.06: Rights of Access
32.07: Copies of Records; Fees
32.08: Appeals
32.09: Enforcement of Orders
32.10: Advisory Opinions
32.01
: Scope and Purpose
(1) 950 CMR 32.00 describes the practices and procedures of the
Division of Public Records relative to the requirements of
governmental entities or political subdivisions of the
Commonwealth with respect to disclosure of public records,
reporting requirements for certain records access officers and
ensuring that disputes regarding access to particular records are
resolved expeditiously and fairly. 950 CMR 32.00 shall not limit
the availability of other remedies provided by law.
(2) The Division of Public Records is under the supervision of
the Supervisor of Public Records. The Supervisor may amend and
rescind such rules, forms and orders as are contemplated by the
provisions of the Massachusetts General Laws and as are
necessary to carry out their purposes.
(3) The Supervisor of Public Records may authorize exceptions
to 950 CMR 32.00 with respect to any specific requirement
provided that such exceptions to 950 CMR 32.00 are in
conformity with the provisions of the Massachusetts General
Laws.
32.02
: Definitions
For the purposes of 950 CMR 32.00 unless the context otherwise
requires, the following terms shall have the meanings indicated:
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Advisory Opinion. An opinion issued by the Supervisor of Public Records
intended to provide guidance on issues related to public records access and
retention.
Agency. Any agency, executive office, department, board, commission,
bureau, division or authority of the commonwealth that is identified in M.G.L.
c. 66, § 6A and c. 4, § 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, § 1.
Business Day. Monday through Friday. Business day does not include
Saturdays, Sundays, legal holidays, or other weekdays where a custodian's
office is closed unexpectedly.
Commercial Purpose. The sale or resale of any portion of the public record or
the use of information from the public record to advance the requester's
strategic business interests in a manner that the requester can reasonably
expect to make a profit including in addition to the foregoing, obtaining
names and addresses from the public record for the purpose of solicitation. It
does not include gathering or reporting news or gathering information to
promote citizen oversight or further the understanding of the operation or
activities of government or for academic, scientific, journalistic, or public
research or education.
Custodian. Any governmental entity that makes or receives public records.
Division. Division of Public Records, Office of the Secretary of the
Commonwealth of Massachusetts.
Governmental Entity. Any agency or municipality as defined in 950 CMR
32.02. It includes any quasi-governmental agency that is considered a body
politic and corporate or public instrumentality. It does not include the
legislature and the judiciary.
Municipality. 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.
Public Record. 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 a
governmental entity unless such materials or data fall within one or more of
the exemptions found within M.G.L. c. 4, § 7, clause Twenty-sixth or other
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61
legally applicable privileges.
Records Access Officer. The employee designated within a governmental
entity to perform duties described in 950 CMR 32.00 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.
Requester. Any person or entity seeking to inspect or obtain copies of public
records.
Redact. To delete, or otherwise expurgate that part of a public record that is
exempt from disclosure under M.G.L. c. 4, § 7, clause Twenty-sixth or other
legally applicable privileges from non-exempt material.
Search Time. The time needed to locate and identify, pull from the files, copy
and reshelve or refile a public record. However, it shall not include the time
expended to create the original record.
Secretary. The Secretary of the Commonwealth of Massachusetts.
Segregation Time. The time used to review records to determine what portions
are subject to redaction or withholding under M.G.L. c. 4, § 7, clause Twenty-
sixth or other legally applicable privileges. Segregation time shall not include
time expended to review record for accuracy and correct errors.
Supervisor. Supervisor of Public Records or Supervisor of Records.
Withhold. To hold back from disclosure a record under M.G. L. c. 4, § 7,
clause Twenty-sixth or other legally applicable privileges.
32.03
: General Provisions
(1) Division Mailing Address and Electronic Mail Address. All
communications shall be addressed or delivered to:
Supervisor of Records
Division of Public Records
Office of the Secretary of the Commonwealth
One Ashburton Place, Room 1719
Boston, Massachusetts 02108
or: pre@sec.state.ma.us
Electronic communication is strongly encouraged and is the
preferred method of correspondence.
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(2) Division Business Hours. The regular hours of the Division
are from 8:45 A.M. to 5:00 P.M. each business day.
(3) Computation of Time. Unless otherwise provided, the computation of
time referred to in 950 CMR 32.00 shall begin with the first business day
following the date of receipt of any request, regardless of form.
(4) Presumptions. In all proceedings pursuant to 950 CMR 32.00, there shall
be a presumption that the record sought is public.
32.04
: Records Access Officers
(1) Each agency and municipality shall designate one or more employees as
records access officer(s).
(2) In a municipality, the municipal clerk, or the clerk's designees, or any
designee of a municipality that the chief executive officer of the municipality
may appoint, shall serve as records access officers.
(3) The designation of a records access officer shall not be construed to
prohibit employees who have been previously authorized by the agency or
municipality to make public records or information available to the public
from continuing to do so in accordance with 950 CMR 32.00.
(4) Each agency and municipality shall post in a conspicuous location at its
offices and on its website, if any, the name, title, business address, business
telephone number, and business email address of each records access officer.
(5) A records access officer shall:
(a) coordinate the custodian's response to requests for access to public
records and shall facilitate the resolution of such requests by the timely
and thorough production of public records;
(b) assist persons seeking public records to identify the records
sought;
(c) assist the custodian in preserving public records in accordance
with all applicable laws, rules, regulations and retention schedules;
(d) to the extent feasible, provide public records to a requester in
electronic format unless the record is not available in electronic form
or the requester does not have the ability to receive or access the
records in electronic format and if feasible, in the requester’s preferred
format. In the absence of a preferred format, the records shall be
provided in a searchable machine-readable form;
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63
Where the requester is an individual held in custody in any
correctional facility, as defined in M.G.L. c. 125, § l(d), the
records access officer shall presume that the requester does not
have the ability to receive or access records in usable electronic
form;
(e) to the extent feasible, furnish the public records by
providing reasonable assistance in locating the records on an
appropriately indexed and searchable public website;
(f) prepare guidelines of the agency or municipality that enable
the person seeking access to public records in the custody of the
agency or municipality to make informed requests regarding the
availability of such public records electronically or otherwise.
The guidelines shall include a list of categories of public records
maintained by the agency or municipality and such list shall be
updated periodically; each agency or municipality that maintains
a website shall post the guidelines on its website;
(g) a municipal records access officer shall, to the extent feasible,
post commonly available public record documents on a website
maintained by the municipality. The website copy shall not be
deemed the record copy for retention purposes.
32.05
: Additional Records Access Officer Responsibilities
(1) Agency Records Access Officers. The requirements of 950
CMR 32.05(1) shall apply only to agency records access officers.
(a) agency designation of primary and secondary records
access officers; reporting requirements:
1. each agency shall designate one primary records
access officer responsible for reporting information to
the Secretary pursuant to M.G.L. c. 66, § 6A(e) and
950 CMR 32.05(1)(c).
2. a primary records access officer shall submit a
notification of such designation to the Division
electronically in a manner determined by the Division.
3. the primary records access officer may notify the
secondary record access officers to facilitate reporting
such information.
4. the primary records access officer shall
electronically notify the Secretary of the designation
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of secondary records access officers electronically in a
manner determined by the Division.
5. the agency shall maintain and update information
regarding primary and secondary records access
officers electronically, including changes in personnel
identified as primary and secondary records access
officers, in a manner determined by the Division.
(b) agency records access officers shall electronically report to the
Secretary the information described in 950 CMR 32.05(1)(c)1. through
9. in a manner determined by the Secretary.
(c) an agency records access officer shall report to the Secretary with
respect to written requests for public records and responses to these
requests for each calendar year ending December 31
st
:
1. the nature of each request and the date on which each
request was received;
2. the date on which a response is provided to the requester;
3. the date on which a public record is provided to the
requester;
4. the number of hours required to fulfill the request;
5. fees charged to the requester, if any;
6. records access officer petitions to the Supervisor submitted
under M.G.L. c. 66, § 10(d)(iv) and 950 CMR 32.06(4)(g) and
(h);
7. requests appealed to the Supervisor under M.G.L. c. 66, §
10A and 950 CMR 32.08(1);
8. the time required to comply with the Supervisor's orders
under M.G.L. c. 66, § 10A; and
9. the final adjudication of any associated court proceedings
under M.G.L. c. 66, § 10A(d).
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(d) the Supervisor may make exceptions to the reporting
requirement in 950 CMR 32.05(1)(c) for particular classes of
records, such as:
1. certified copies of records;
2. registry of deeds records;
3. incorporation records;
4. vital records;
5. criminal offender record information requested by the
offender, representative, or other authorized recipient.
(e) all information must be provided in accordance with 950
CMR 32.05(1) by February 1
st
of the calendar year following
the date of the request.
(f) an agency shall provide on a searchable website electronic
copies, accessible in a commonly available electronic format,
of the following types of records, provided that any agency
may withhold any record or portion thereof in accordance
with state or federal law:
1. final opinions, decisions, orders, or votes from agency
proceedings;
2. annual reports;
3. notices of regulations proposed under M.G.L. c. 30A;
4. notices of hearings;
5. winning bids for public contracts;
6. awards of federal, state and municipal government
grants;
7. minutes of open meetings;
8. agency budgets; and
9. any public record information of significant interest
that the agency deems appropriate to post, such
determination to be made by each agency on a case-by-
case basis.
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(g) an agency shall post records online pursuant to 950 CMR
32.05(1)(f) as soon as practicable on a website maintained by
the agency. The website copy shall not be deemed the record
copy for retention purposes. 950 CMR 32.05(1)(f) and (g) shall
apply only to records made or received on or after January 1,
2017.
(h) an agency may fulfill the requirements of 950 CMR
32.05(1)(f) and (g) by providing links to other agency websites
that provide access to the categories of records described in
950 CMR 32.05(1)(f)1. through 9.; provided, however, that the
website is searchable and provides electronic copies, accessible
in a commonly available electronic format.
32.06
: Rights of Access
(1) Requests for Public Records.
(a) requests for public records may be made orally in person to a
records access officer or custodian or may be written. Telephone
requests may be accepted at the discretion of the records access
officer.
(b) requests for public records shall include a reasonable description
of the requested record to the records access officer so that the records
can be identified and located promptly.
(c) written requests may be delivered by a requester to the business
address or designated website or email address of a records access
officer or custodian:
1. by hand;
2. by mail;
3. electronically; or
4. by facsimile, if custodian has facsimile access.
(d) a records access officer shall not require a particular form be used
by requesters, but may make forms available for requesters.
(e) a person shall not be required to make a personal inspection of the
record prior to receiving a copy.
(f) calculation of time will commence only for requests that are made
in accordance with 950 CMR 32.06(1).
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(2) Records Access Officer Response to Requests for Records.
(a) a records access officer or designee shall permit inspection
or provide or furnish a copy of all public records within the
custody and control of the custodian at reasonable times and
without unreasonable delay under M.G.L. c. 66, § 10(a).
(b) if applicable, a records access officer shall provide a
written response under M.G.L. c. 66, § 10(b) to a request for
public records no later than the tenth business day following
the receipt of a request notwithstanding the applicability of
any petition filed pursuant to 950 CMR 32.06(4).
(c) a records access officer shall not charge a fee for the
provision of a public record unless the records access officer
responded to the requester within ten business days following
receipt of the request under M.G.L. c. 66, § 10(b).
(d) if a records access officer intends to provide records,
access to such records must be provided no later than the
tenth business day following the receipt of a request, unless
an extension of time is permitted in a manner consistent with
950 CMR 32.06(2)(i) and (4).
(e) if a request is received on a Saturday, Sunday, legal
holiday or day when the custodian’s office is unexpectedly
closed, the receipt will be deemed on the following business
day.
(f) a records access officer may delay provision of records
until all fees related to such requests are paid in full by the
person seeking access to the requested records in accordance
with 950 CMR 32.07.
(g) a records access officer shall, when appropriate, suggest a
reasonable modification of the scope of the request or offer to
assist the requester to modify the scope of the request if doing
so would enable the agency or municipality to produce
records sought more efficiently and affordably.
(h) a records access officer may not require the requester to
specify the purpose for a request except:
1. to determine whether the records are requested for a
commercial purpose; or
2. to determine whether to grant a request for a fee waiver.
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(i) a records access officer shall identify a reasonable timeframe in
which it shall produce the public records sought in a manner consistent
with M.G.L. c. 66, § 10(b)(vi), provided that the requester may
voluntarily agree to a response date beyond these timeframes.
(3) Denial by Records Access Officer.
(a) a records access officer shall provide written notice by first class
mail or electronic mail to a requester of any denial of access to records.
(b) a records access officer shall provide such written notice of denial of
access within ten business days following receipt of a request for public
records in accordance with 950 CMR 32.06(2)(b).
(c) such written notice of denial shall include:
1. the date of the request;
2. identification of any records sought that are not within the
possession, custody, or control of the agency or municipality the
records access officer serves;
3. identification of the agency or municipality that may be in
possession, custody or control of the public record sought, if
known to the records access officer;
4. identification of any records, categories of records or portions
of records that the agency or municipality intends to withhold;
5. identification of any specific exemption to the Public Records
Law or common law privilege that applies to the withheld record
or records;
6. identification of the applicability of each cited exemption or
privilege to each portion of the withheld record or records;
7. identification of any portions of responsive records that the
agency or municipality intends to produce; and
8. a statement informing the requester of the right of
administrative appeal to the Supervisor under 950 CMR
32.08(1) and the right to seek judicial review of an unfavorable
decision by commencing a civil action in the superior court.
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69
(d) where a record has been withheld based on a claim of the attorney-
client privilege the records access officer shall provide in its
written denial a detailed description of the record, including the
names of the author and recipients, and in general terms, the
subject matter of the withheld information.
(4) Petition for Modification or Waiver by a Records Access Officer to the
Supervisor.
(a) petitions requesting an extension of time to furnish copies
of the requested records or waive statutory limits to fees from
a records access officer to the Supervisor shall be in writing
and delivered to the Supervisor in accordance with 950 CMR
32.03(1). A copy of the petition shall be provided by the
records access officer to the requester. The Supervisor shall
issue a written determination with findings regarding any such
petition within five business days following receipt of a
records access officer petition.
(b) petitions filed under 950 CMR 32.06(4) do not affect the
requirement that a records access officer shall provide an
initial response to a requester within ten business days
following receipt of a request for public records, pursuant to
950 CMR 32.06(2)(a) or (b). Failure to comply with 950
CMR 32.06(4) will result in a waiver of the right to assess
fees for public records.
(c) all such petitions shall be considered public records both
in the custody of the records access officer and the
Supervisor.
(d) petitions seeking an extension of time to furnish copies of
the requested records must be made by a records access
officer within 20 business days following receipt of a request
for public records, or within ten business days following the
records access officer's receipt of a determination by the
Supervisor that a requested record constitutes a public record.
(e) a petition for extension of time described in 950 CMR
32.06(4)(d) shall include a brief narrative detailing why an
extension of time is necessary. Upon a showing of good
cause, the Supervisor may grant a single extension. For an
agency, such extension may not exceed 20 business days
from the date of the grant of the extension by the Supervisor.
For a municipality, such extension may not exceed 30
business days from the date of the grant of the extension by
the Supervisor.
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(f) if, when reviewing a petition for extension of time described
in 950 CMR 32.06(4)(d), the Supervisor determines that the
request is part of a series of contemporaneous requests that are
frivolous or designed to intimidate or harass, and the requests are
not intended for the broad dissemination of information to the
public about actual or alleged government activity, the Supervisor
may grant a longer extension or relieve the custodian of its
obligation to provide copies of the records sought.
(g) petitions seeking a waiver of statutory limits to fees assessed
to segregate and/or redact public records must be made within ten
business days following receipt of a request for public records.
(h) a petition seeking a waiver of statutory limits to fees
described in 950 CMR 32.06(4)(g) must be made in accordance
with the following:
1. any records access officer may petition the Supervisor
to charge for time spent segregating or redacting records.
2. only a municipal records access officer may petition
the Supervisor for permission to charge fees in excess of
the maximum hourly rate of $25 per hour for time
required to comply with a request.
3. records access officers shall not petition the Supervisor
seeking a waiver associated with the provisions of 950
CMR 32.07(2)(l)1. and (m)1.
4. a records access officer shall respond to a request
within five business days of receipt of the Supervisor's
determination regarding a petition submitted under 950
CMR 32.06(4)(g).
32.07
: Copies of Records; Fees
(1) Copies of Paper and Electronic Records.
(a) upon request, a requester shall be entitled to receive in hand,
by mail, by facsimile or electronically one copy of a public record
or any desired portion of a public record.
(b) as an alternative to obtaining copies of records from a records
access officer a requester shall be permitted, to the extent
feasible, and at reasonable times:
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1. view and inspect records or
2. use a personal device such as a camera or portable
scanner to copy records.
(c) the records access officer shall presume that a requester
prefers copies provided in machine-readable electronic form,
when electronic form is available, unless the requester
specifies an alternative preference.
(d) the records access officer must provide electronic records
in native form when possible.
(e) when designing or acquiring an electronic record keeping
system or database the records access officer in cooperation
with the custodian shall ensure, to the extent feasible that:
1. newly acquired or implemented electronic record
keeping systems or databases are capable of providing
data in a commonly available electronic, machine readable
format; and
2. the newly acquired or implemented electronic record
keeping system allows for information storage and
retrieval methods permitting retrieval of public portions of
records to provide maximum public access.
(f) furnishing a segregable portion of a public record shall not
be deemed to be creation of a new record. This applies to a
responsive record in the form of an extract of existing data, as
such data exists at the time of the request and is segregable
from nonresponsive and exempt data.
(2) Fees.
(a) a records access officer may assess a reasonable fee for
the production of a public record except those records that are
freely available for public inspection, subject to the provisions
of 950 CMR 32.04(5)(d). A records access officer shall
inform a requester of the availability of records online to
avoid delays and fees associated with the provision of public
records.
(b) if fees are being assessed, a records access officer shall
provide a written, itemized, good faith estimate of any fees
that may be charged to produce the records prior to complying
with a public records request within ten business days
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following receipt of a request.
(c) the reasonable fee for reproduction shall not exceed the
actual cost of reproducing the record.
(d) a fee shall not be assessed for time spent segregating or
redacting records unless such segregation or redaction is
required by law or approved by the Supervisor under 950
CMR 32.06(4)(g) and (h).
(e) the charge for black and white paper copies or printouts of
records of any size susceptible to ordinary means of
production shall not exceed $.05(¢) per page, for both single
and double-sided black and white copies or printouts.
(f) a records access officer shall not assess a copying fee for
electronic copies or copies of public records transmitted via
facsimile.
(g) the actual cost of any storage device or material provided
to a person in response to a request for public records may be
included as part of the fee.
(h) for copies of public records not susceptible to ordinary
means of reproduction, the actual cost incurred in providing a
copy may be assessed.
(i) a records access officer shall assess no fee greater than the
lowest hourly rate of a person capable of compiling,
segregating, redacting and reproducing a requested record,
subject to the requirements of 950 CMR 32.07.
(j) a records access officer may assess the actual cost of
postage to mail copies of public records, provided:
1. the requester specifically requests that records be
mailed or is unable to receive copies in person; and
2. the records access officer shall charge the lowest cost
available for such mailings, at the discretion of the
requester.
(k) Waiver of Fees. Records access officers may waive or
reduce the amount of any assessed fee upon a showing that:
1. disclosure of a requested record is in the public
interest;
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2. the request for records is not primarily in the
commercial interest of the requester; or
3. the requester lacks the financial ability to pay the full
amount of the reasonable fee.
(l) Agency Records Access Officers.
1. an agency records access officer shall not assess a fee
for the first four hours of time spent searching for,
compiling, segregating, redacting and reproducing a
requested record.
2. an agency records access officer 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 under 950 CMR
32.06(4)(g) and (h).
3. an agency records access officer shall assess no fee of
more than $25 per hour for the cost to comply with a
request for public records.
(m) Municipal Records Access Officers.
1. a municipal records access officer shall not assess a fee
for the first two hours of time spent searching for,
compiling, segregating, redacting and reproducing a
requested record in a municipality with a population of
over 20,000.
2. a municipal records access officer in a municipality
with a population of 20,000 persons or fewer may assess a
fee for the first two hours of time spent compiling,
segregating, redacting and reproducing a requested record,
provided:
i. population data shall be determined by the
decennial U.S. Census; and
ii. it shall be the burden of the municipal records
access officer to provide population data information
in responses in which it seeks to assess such fees.
3. a municipal records access officer shall assess no fee of
more than $25 per hour for the cost to comply with a
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request for public records unless approved by the
Supervisor under 950 CMR 32.06(4)(g) and (h).
4. a municipal records access officer 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 under 950 CMR
32.06(4)(g) and (h).
(n) Failure to Pay Fee. A records access officer may provide
written notice denying access to public records to a requester
who has failed to compensate the custodian for previously
produced public records, provided:
1. a fee estimate for a previous request was prepared in
compliance with 950 CMR 32.00 and the requester agreed
to pay the previous fee;
2. the written notice details the reasons for denial,
including an itemized list of any balances attributed to
previously produced records.
32.08
: Appeals
(1) Appeal to the Supervisor.
(a) a requester may petition the Supervisor for failure by a
records access officer to comply with a requirement of 950 CMR
32.00.
(b) an oral request, while valid as a public record request, shall
not be the basis of an appeal under 950 CMR 32.08.
(c) petitions for appeal of a response by a records access officer
must be made within 90 calendar days of the date of the response
by a records access officer.
(d) petitions for appeal of a failure to respond within the
timeliness requirements of 950 CMR 32.00 must be made within
90 calendar days of the request.
(e) all petitions for appeal shall be in writing and shall
specifically describe the nature of the requester's objections to the
response or failure to timely respond.
(f) requesters shall provide to the Supervisor complete copies of
all correspondence associated with the petition, including:
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1. a complete copy of the letter by which the request
was made, including in the case of electronic
communications all header information indicating
time, date, subject, sender and recipient email
addresses; and
2. a complete copy of all written responses associated
with requests subject to the petition for appeal,
including in the case of electronic communications all
header information indicating time, date, subject,
sender and recipient email addresses.
(g) in petitioning the Supervisor, the requester shall provide a
copy of such petition to the records access officer associated
with such petition.
(h) if the requester's petition for appeal is related to a
previous appeal to the Supervisor, the requester's petition
shall refer to the previous appeal number.
(2) Dispositions of Appeals and Records Access Officer Petitions.
(a) the Supervisor shall issue a written determination
regarding any petition submitted in accordance with 950
CMR 32.08(1) not later than ten business days following
receipt of the petition. The Supervisor shall issue a written
determination regarding any petition submitted in accordance
with G. L. c. 66, § 10(c)(vi) and G. L. c. 66, § 10(d)(iv) within
5 business days following receipt of the petition. If necessary,
additional time may be granted as agreed upon by both the
requester and the records custodian.
(b) the Supervisor may deny an appeal for, among other
reasons if, in the opinion of the Supervisor:
1. the public records in question are the subjects of
disputes in active litigation, administrative hearings or
mediation;
2. the request is designed or intended to harass,
intimidate, or assist in the commission of a crime;
3. the public records request is made solely for a
commercial purpose;
4. the requester has failed to comply with the provisions
of 950 CMR 32.08(2).
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(c) upon a determination by the Supervisor that a violation has
occurred, the Supervisor shall order timely and appropriate relief.
(3) Hearings and Conferences.
(a) the Supervisor may conduct a hearing pursuant to the provisions
of 801 CMR 1.00: Standard Adjudicatory Rules of Practice and
Procedure. The decision to hold a hearing shall be solely in the
discretion of the Supervisor.
1. said rules shall govern the conduct and procedure of all
hearings conducted pursuant to 950 CMR 32.08.
2. nothing in 950 CMR 32.08 shall limit the Supervisor from
employing any administrative means available to resolve
summarily any appeal arising under 950 CMR 32.00.
(b) the Supervisor may order conferences for the purpose of clarifying
and simplifying issues and otherwise facilitating or expediting the
investigation or proceeding. The decision to hold a conference shall be
solely in the discretion of the Supervisor.
(4) In Camera Inspections and Submissions of Data.
(a) the Supervisor may require an inspection of the requested
record(s) in camera during any investigation or any proceeding
initiated pursuant to 950 CMR 32.08.
(b) the Supervisor may require the records access officer to produce
other records and information necessary to reach a determination
pursuant to 950 CMR 32.08.
(c) the Supervisor does not maintain custody of documents received
from a records access officer submitted for an in camera review. The
documents submitted for an in camera review do not fall within the
definition of public records. M.G.L. c. 4, § 7(26).
(d) upon a determination of the public record status of the documents,
they are promptly returned to the custodian, and no copies shall be
retained by the Supervisor.
(e) any public record request made to the Division for records being
reviewed in camera would necessarily be denied, as the office would
not be the custodian of those records.
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(f) attorney-client privileged records voluntarily submitted to
Supervisor:
1. a records access officer may voluntarily submit
documents to the Supervisor for in camera review;
2. such submission shall not waive any legally applicable
privileges claimed by the agency or municipality.
(5) Custodial Indexing of Records.
(a) the Supervisor may require a records access officer or
custodian to compile an index of the requested records within
the context of a public records appeal under 950 CMR 32.08.
(b) said index shall be a public record and shall meet the
following requirements:
1. the index shall be contained in one document, complete
in itself;
2. the index shall adequately describe each withheld
record or redaction from a released record;
3. the index must state the exemption or exemptions
claimed for each withheld record or each redaction of a
record; and
4. the descriptions of the withheld material and the
exemption or exemptions claimed for the withheld
material must be sufficiently specific to permit the
Supervisor to make a reasoned judgment as to whether the
material is exempt.
(c) nothing in 950 CMR 32.08 shall preclude the Supervisor
from employing alternative or supplemental procedures to
meet the particular circumstances of each appeal.
32.09
: Enforcement of Orders
A records access officer shall promptly take such steps as may be
necessary to comply with an order of the Supervisor. If a records
access officer fails to comply with an order issued by the
Supervisor, the Supervisor, upon the Supervisor's initiative, may
notify the Attorney General to ensure compliance.
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32.10: Advisory Opinions
Advisory opinions from the Supervisor may be requested.
However, it shall be in the Supervisor's discretion whether to
issue an advisory opinion. The Supervisor has and will continue
to provide a staff member on call every day during regular
business hours to offer informal information to any person,
whether a requester or custodian.
REGULATORY AUTHORITY
950 C.M.R. 32.00: G. L. c. 66, § 1.
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Examples of Exemption (a) Statutes
Abatement Applications: G. L. c. 59, § 60.
Address Confidentiality Program: G. L. c. 9A, § 6.
Affordable Housing Applicant Information: G. L. c. 40T, § 3.
Air Pollution Control (Trade Secrets): G. L. c. 111, § 142B.
Alcohol Treatment Records: G. L. c. 111B, § 11.
Bank Examination Records: G. L. c. 167, § 2.
Bid Information, Trade Contractor Scores: G. L. c. 149A, § 8(f).
Birth Reports: G. L. c. 46, § 4A.
Blind Persons, Commission for the Blind Register: G. L. c. 6, § 149.
Board of Registration in Medicine (BORIM): G. L. c. 111, § 53B; G. L. c. 112, § 5.
Business Schools (Private), Financial Statements: G. L. c. 75D, § 3.
Capital Facility Construction Project Records: G. L. c. 30, § 39R.
Central Registry of Voters: G. L. c. 51, § 47C.
Conflict of Interest, Request for an Opinion: G. L. c. 268A, § 22.
Consumer Protection Investigation: G. L. c. 93A, § 6(6).
Councils on Aging, Names, Addresses and Telephone Numbers of Elderly: G. L. c. 40, § 8B.
Criminal Offender Record Information: G. L. c. 6, § 167.
Delinquency, Sealing by Commissioner of Probation: G. L. c. 276, § 100B.
Department of Social Services, Central Registry: G. L. c. 119, § 51F.
Department of Youth Services Records: G. L. c. 120, § 21.
Drug Addiction Treatment Records: G. L. c. 111E, § 18.
Employment Agencies, Data: G. L. c. 140, § 46R.
Employment Security Data: G. L. c. 151A, § 46.
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Exemption of Legislature from Public Records Law: G. L. c. 66, § 18.
Extreme Risk Protection Order Records: G. L. c. 140, § 131R.
Evaluations of Special Needs Children: G. L. c. 71B, § 3.
Family Educational Rights and Privacy Act (FERPA): 20 U.S.C. § 1232g.
Fetal Death Reports: G. L. c. 111, § 202.
Gas and Electric Affiliated Company Records: G. L. c. 164, § 85.
Genetically Linked Diseases, Testing Records: G. L. c. 76, § 15B.
Hazardous Substances Reports: G. L. c. 111F, § 21.
Hazardous Waste Management Records: G. L. c. 21D, § 6.
Hazardous Waste Facilities: G. L. c. 21C, § 12.
Historical and Archaeological Sites and Specimen Inventory: G. L. c. 9, § 26A(1).
Hospital Records: G. L. c. 111, § 70.
Hospitals, Reports of Staff Privilege Revocation: G. L. c. 111, § 53B.
Impounded Birth Records: G. L. c. 46, § 2A.
Inspector General Investigations, Records: G. L. c. 12A, § 13.
Juvenile Delinquency Case Records: G. L. c. 119, § 60A.
Library Circulation Records: G. L. c. 78, § 7.
Malignant Disease Reports: G. L. c. 111, § 111B.
Massachusetts Commission Against Discrimination Investigatory Files: G. L. c.
151B, § 5.
Massachusetts Technology Development Corporation, Corporate Records: G. L.
c. 40G, § 10.
Mental Health Facilities Records: G. L. c. 123, § 36.
Merit Rating Plans, Motor Vehicle Insurance: G. L. c. 6, § 183.
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Mortgage Lender and Mortgage Broker Examination Records: G. L. c. 255E, § 8.
Mortgage Loan Originator Examination Records: G. L. c. 255F, § 14(d).
Native American Burial Site Records: G. L. c. 9, § 26A (5).
Natural Heritage Programs, Data Base: G. L. c. 66, § 17D.
Open Meeting Law: G. L. c. 30A, §§ 18-25.
Patient Abuse Information; Intermediate Care Facilities for Mentally Retarded
Citizens, Convalescent, Nursing or Rest Homes: G. L. c. 111, § 72I.
Patient’s Rights to Confidentiality of Records; Medical and Mental Health
Facilities: G. L. c. 111, § 70E.
Protective Services Records, Aged Persons: G. L. c. 19A, § 23.
Public Assistance Records, Aged Persons, Dependent Children, Handicapped
Persons: G. L. c. 66, § 17A.
Public Assistance, Wage Reporting System Information: G. L. c. 62E, § 8.
Reports of Rape, Sexual Assault, and Domestic Violence: G. L. c. 41, § 97D.
Records divulging name, home or email address and phone number; persons who
own, possess or have license to carry firearms; government personnel: G. L. c. 66,
§ 10B.
Reyes Syndrome Report: G. L. c. 111, § 110B.
Sex Offender Registry, Requests for Registry Information: G. L. c. 6, § 178I.
Street Lists, Children Aged 3-17, Court Order Granting Protection: G. L. c. 51, §
4(a), (d).
Student Records: G. L. c. 71, § 34D, 34E.
Tax Returns: G. L. c. 62C, § 21.
U-Visa Certification: G. L. c 258F, § 4.
Venereal Disease Records: G. L. c. 111, § 119.
Vocational Rehabilitation Records: G. L. c. 6, § 8.
William Francis Galvin
Secretary of the Commonwealth
Division of Public Records
One Ashburton Place, Room 1719
Boston, MA 02108
