Table of Contents

1. Overview
2. The Law
3. Resources
4. Stats

Overview

• Recently overhauled, bringing some much needed improvements — and setbacks
• Most complex deadline schedule of any state
• Agencies beginning to invest in improving practices

Massachusetts has a reputation for being one of the most difficult states to get records out of, but recent reforms have at least created the potential for the law — which has particularly broad carveouts for police records — to finally have some teeth.

And even after the reform, there’s still confusion in some major areas. A Massachusetts Supreme Court ruling argued that because the text of the law didn’t explicitly extend to the governor’s office, it didn’t apply, making the state the only one to exempt the legislative, judicial, and executive branches.

There is an appeals system overseen by the Secretary of State, but the Secretary’s power comes from the threat of his handing the case over to the Attorney General, something that has rarely happened.

The only option left when dealing with a stonewalling agency is to take them to court. Massachusetts only recently added provision that allows successful litigants to reclaim attorneys fees, and that is only at the judge’s discretion, so transparency can be pricey.

Expect huge fees

A common tactic among agencies that can’t reject a request outright is to claim that processing the request would generate thousands of dollars in fees, in effect holding the documents “hostage.” Most commonly, you see this with emails, with agencies arguing that they needed to print them out and hand-redact them to ensure the integrity of the document. While these can be appealed with some success, it does help to keep requests as narrow as possible.

Private/Public gray areas

Massachusetts has several “semi-public” entities, which are taxpayer funded and involved in the public sector, but which claim to be exempt from the law as private entities. Even some very obviously public agencies – like the MBTA – will claim that certain records – like their retirement fund – are private records within a public agency.

The Law

• 10 business day response time, with state agencies able to request a 20 day extension and municipalities able to request a 30 day extension from the Supervisor of Public Records.
• Applies only to all executive agencies. Does not apply to the Office of the Governor, the judicial branch, or the legislature.
• Residents and non-residents may submit requests.
• Centralized appeal agency.

Supplemental

Definition of public records - [MGL c.4 s. 7 cl. 26]

2016 Public Records Reform H. 3858

Court records

Fair Information Practices Act [MGL c.66A]

Open Meeting Law [M.G.L. c. 30A, §§ 18-25]

AG Open Meeting Law regulations

Fair Information Practices Act regulations [940 CMR 11]

Public records access regulations [950 CMR 32]

Information Practices regulations [950 CMR 33]

Preservation and destruction of records, books, and papers [MGL c. 66, § 8]

Statewide record retention schedule

Municipal Records Retention Manual (2011)

MA Trial Court Record Retention Schedule

The Details

Can you submit a request if you’re not a resident?

Yes. Massachusetts law currently has no provision dictating a residency requirement.

To whom does this apply?

Executive?

No.

Judicial?

No.

Legislative?

No.

Is there a designated records custodian?

Yes, each agency and municipality must designate a Records Access Officer.

Who is exempted?

The governor. The Office of the Governor has often relied on Lambert v. Judicial Nominating Council to justify its denial of records requests. The case stated:

“Neither the Legislature nor the Judiciary are expressly included in G.L. c.4, s. 7, Twenty-sixth. We have noted that [t]he Legislature is not one of the instrumentalities enumerated in G. L. c. 4, s. 7, Twenty-sixth, whose records are subject to public disclosure. It is not an ‘agency, executive office, department, board, commission, bureau, division or authority’ within the meaning of s. 7, Twenty-sixth.” Westinghouse Broadcasting Co. v. Sergeant-at-Arms of the Gen. Court,375 Mass. 179 , 184 (1978). We also have determined that court records and “all else properly part of the court files were outside the range” of inspection based on the text of G. L. c. 4, s. 7, Twenty-sixth. See Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539 , 546 (1977). Likewise, the Governor also is not explicitly included in clause Twenty-sixth. “Like the Legislature and the Judiciary, the Governor possesses incidental powers which he can exercise in aid of his primary responsibility.” Opinion of the Justices, supra at 874. Lambert v. Judicial Nominating Council , 425 Mass. 406 (1997)

The new 2016 reform created a Special Legislative Commission on Public Records tasked in extending the state’s public records law to the Legislature, the Governor’s Office, and the Judicial branch, which are currently exempt. The commission is set to report its findings in December of 2018.

How can requests be submitted?

In-person?

Yes. Records custodians “shall, at reasonable times and without reasonable delay, permit it, or any segregable portion of a records which is an independent public record, to be inspected and examined by any person, under his supervision.”

Verbally?

Yes. A request may be submitted verbally. However, a verbal request is not an adequate submission style for anything that may eventually be appealed.

By mail?

Yes.

By email?

Yes.

How long do they have to respond?

10 business days, starting the date after the request is received and not including snow days.

Section 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

Are there provisions regarding the extension of response times?

Agencies may request an extension of response time from the Supervisor of Public Records.

Does the agency have to give you a tracking number or estimated date of completion?

No and no. Nothing in the law specifically says that such things are necessary.

Can they ask why you ask?

No. Nowhere in the law does it say that a records custodian can demand to know the reason for the request. However, records custodians are encouraged to release materials in the public interest.

What enforcement?

The Supervisor of Public Records is the primary enforcer of the public records law within the state. Appeals should be sent to his office. From there, the SPR can order the custodian to comply; further refusal to do so may result in referral to the Attorney General or the appropriate district attorney, although this is rare.

Fees?

“Every person for whom a search of public records is made shall, at the direction of the person having custody of such records, pay the actual expense of such search.” G.L. c. 66 § 10(b)

Police, MBTA, fire departments:

• Prepare/mail vehicle accident report - $5 for up to 6 pages, .50 for each additional page
• Fire insurance report - $5 for up to 6 pages, .50 for each additional page
• Crime/incident/miscellaneous reports - $1 per page
• Any public record in hand - .50 per page

In general:

• Agencies may not charge for the first four (4) hours of employee time spent in responding to a records request; for municipalities, it is the first two (2) hours. After this the agency and municipality may charge a maximum rate of $25 per hour.
• Municipalities, but not agencies, may exceed this rate if the request is for a commercial purpose or the requested fee reflects the actual cost to comply.
• Unless required by law, employee time spent redacting or segregating records may not be charged.
• The cost for copying records, previously set at .50 cents per page, is now 5 cents per page.
• If a records officer fails to respond within 10 business days, no fee may be charged.

The 2015 reforms generally limit fees to $25 per hour or less for search and review time, but agencies may appeal to the Supervisor of Public Records for an increased rate. Agencies are encouraged to release documents of wide public interest free of charge.

Are there fee waivers for media requests or those made in the public interest?

No. However:

“Every custodian, unless otherwise required by law, is encouraged to waive fees where disclosure would benefit the public interest.” 950 CMR 32.06(5)

Attorney’s fees - Can you win them?

The Superior Court may award attorney fees, except under four specific circumstances:

• (i) the supervisor of public records finds the agency or municipality did no violate the law
• (ii) the agency or municipality based their denial on a published decision of the appellate court or attorney general
• (iii) the request was intended to harass or intimidate
• (iv) the request was not in the public interest or was made for a commercial purpose unrelated to disseminating information to the public.

Section 10A. (b) (iv) whenever a complainant has obtained relief in such a case through a judicial order; enforceable written agreement; consent decree; or a voluntary or unilateral change in position by the agency or municipality, if the complainant’s claim is not insubstantial; the superior court may award reasonable attorney fees and other litigation costs reasonably incurred to the complainant, and may order the agency or municipality to waive or reasonably reduce any fee assessed in accordance with subsection (e) of section 10; provided, that if the superior court determines that the assessment of reasonable attorney fees and other litigation costs reasonably incurred is not warranted, the judge shall issue written findings specifying the reasons for such denial;

Punitive Damages:

The court has the discretion to punish agencies or municipalities in the case that they are found to have acted in a “maliciously or bad faith” manner. Punitive damages can amount to no less than $1,000 and nor more than $5,000.

Section 10A. (b) (v) whenever a complainant has obtained judgment in such a case, and has demonstrated by a preponderance of the evidence that the defendant agency or municipality, in withholding or failing to timely furnish the requested record or any portion thereof, acted maliciously or in bad faith, the superior court may assess punitive damages against the defendant agency or municipality an amount not less than $1,000 nor more than $5,000, to be awarded to the complainant.

Exemptions and Appeals

What exemptions exist?

There is a presumption that all records are public. However, statutes and court cases have combined to create specific exempted categories. (See below for more specific applications.)

Do they have to tell you why a portion or pages were redacted or withheld?

Yes.

“Where a custodian’s response to a record request made pursuant to 950 CMR 32.05(3) is that any record or portion of it is not public, the custodian, within ten days of the request for access, shall in writing set forth the reasons for such denial. The denial shall specifically include the exemption or exemptions in the definition of public records upon which the denial is based. When exemption (a) of M.G.L. c. 4, § 7, clause Twenty-sixth is relied upon the custodian shall cite the operational statute(s). Failure to make a written response within ten days to any request for access shall be deemed a denial of the request. The custodian shall advise the person denied access of his or her remedies under 950 CMR 32.00 and M.G.L. c. 66, § 10(b).” - G.L. c. 66 § 10(b)

• It’s presumed that records are public. - G.L. c. 66 § 10(c)

• Exemptions should be narrowly defined. - Attorney General v. Assistant Comm’r of the Real Property Dep’t of Boston, 380 Mass. 623, 625 (1980)

• The SPR has said that they must tell you why something has been exempted or withheld. - Guide to Mass. Pub. Rec. Law (rev. March 2009)

  “The exemptions to the Public Records Law are described in this guide. If a records custodian claims an exemption and withholds a record, the records custodian has the burden of showing how the exemption applies to the record and why it should be withheld.”

• If elements can be exempted, non-exempt parts must be provided. - SPR Bulletin No. 4-96, “Fees for Access and Copying of Electronic Records” (June 7, 1996)

How much time do you have to appeal?

90 days.

(2) Appeal to the Supervisor. In the event that a person requesting any record in the custody of a governmental entity is denied access, or in the event that there has not been compliance with any provision of 950 CMR 32.00, the requester may appeal to the Supervisor within 90 days. Such appeal shall be in writing, and shall include a copy of the letter by which the request was made and, if available, a copy of the letter by which the custodian responded. The Supervisor shall accept an appeal only from a person who had made his or her record request in writing. An oral request, while valid as a public record request pursuant to 950 CMR 32.05(3), may not be the basis of an appeal under 950 CMR 32.08. [950 CMR 32.08(2)]

To whom does the appeal go?

All appeals go to the Supervisor of Public Records.

Can you appeal a delay?

Yes. The statute says they need to respond within 10 days.

Do agencies have to tell you where to send your appeal?

Yes.

What if your appeal is denied?

Taking it to court is your only other option.

Where else can you turn?

Nowhere.

Are all appeals kept officially?

Yes. You can find them on the website of the Supervisor of Public Records.

Resources

Organizations

The following organizations offer resources for those seeking public records in Massachusetts.

• New England First Amendment Coalition

Attorneys and Law Firms

The following attorneys and law firms have practiced public records law. Names marked with an asterisk have indicated a willingness to offer pro bono services on a case by case basis.

• Prince Lobel

Successful appeals

The Secretary of State’s office posts appeals and their outcomes on its website.

News Stories on Public Records Laws in the State

• State Senate unveils records revamp
• With Mass. public records law in tatters, it’s time for reform

Submit a new link

Blogs and feeds primarily focused on public records in Massachusetts

• Boston Magazine stories on open records
• New England First Amendment Coalition
• Broken Records column

Public Records Guide and Advice

• Secretary of the Commonwealth’s Guide to Public Records
• RCFP’s Open Government Guide
• Requester’s Voice: Jenifer McKim
• Colman M Herman on Bay State public records
• Massachusetts Court System’s Massachusetts Law about Freedom of Information and Public Records

Newsletters

• NEFAC newsletter

Big FOIA wins

Have a public records success story? Let us know!