Table of Contents
- Little to no penalties for agency violations
- Huge fees the norm
- Recent pushback gives some hope
Massachusetts has a well-earned reputation for being one of the most difficult states to get records out of. The problem stems from two key issues: one, the law is one of the weakest in the country, and two, enforcement is virtually nonexistent.
First, the language of the law is woefully vague – agencies constantly quibble over what constitutes a “public record” - as Governor, Mitt Romney argued that emails didn’t count, and wiped his staff’s servers with no consequence. Not that he had much to worry about – a later Massachusetts Supreme Court ruling argued that because the text of the law didn’t explicitly extend to his office, it didn’t apply, making the state one of the few to exempt the Legislative, Judicial, and office of the Executive.
Secondly, agency penalties for failure to comply with the law are virtually nonexistent. Although there is an appeals system overseen by the Secretary of State, the Secretary’s power comes from the threat of his handing the case over to the Attorney General, something that has only happened once in the last five years. The only option left when dealing with a stonewalling agency would be to take them to court – but while most states require agencies that lose public records lawsuits to pay attorney’s fees (encouraging lawyers to take cases Pro Bono), Massachusetts only recently added that provision, and only at the Judge’s discretion, so that option is typically only for those who can afford it.
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
Why do you ask?
Agencies can legally ask what your interest in a what your interest in a particular document is, though you’re not required to tell the truth. The Boston Mayor’s Office goes a step further, and requests that all requests by members of the media send the requests through the Press Office, blurring the line between public records and PR.
- 10-day response time
- 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.
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?
Is there a designated records custodian?
Kind of. The law currently requires that someone be designated responsible for votes, orders, and proceedings and that “the department, board, commission or office shall designate an employee or employees to have the custody of its other public records.”
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)
How can requests be submitted?
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.”
Yes. A request may be submitted verbally. However, a verbal request is not an adequate submission style for anything that may eventually be appealed.
How long do they have to respond?
10 Days. The Supreme Judicial Court has said a reply, but not necessarily full disclosure, is reasonably satisfactory. G.L. c. 66 § 10(b)
“When the last day of the period so computed is a day on which the offices of the Division are closed, the period shall run until the end of the following business day.” 950 CMR 32.04(3)
Are there provisions regarding the extension of response times?
There is currently no provision dictating how agencies may extend time after they’ve responded within the initial ten-day period.
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.
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.
“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
Are there fee waivers for media requests or those made in the public interest?
“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?
No. Under current Massachusetts law, one does not automatically win attorney’s fees in the case that the challenge is won. However, the judge may award them if he wants.
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?
“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?
(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. They may sent by:
<address> Secretary of the Commonwealth<br> Public Records Division<br> McCormack Building<br> One Ashburton Place, Room 1719<br> Boston, MA 02108 </address>
Fax: 617-727-5914 Email: email@example.com
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?
There is no provision dictating that an agency must tell you where to send your appeal. However, all appeals go to the Supervisor of Public Records.
What if your appeal is denied?
Taking it to court is your only other option.
Where else can you turn?
Are all appeals kept officially?
Yes. You can find them on the website of the Supervisor of Public Records.
The following organizations offer resources for those seeking public records in Massachusetts.
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.
News Stories on Public Records Laws in the State
Blogs and feeds primarily focused on public records in Massachusetts
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
Big FOIA wins
Have a public records success story? Let us know!
- Request Record
- 4550 Filed
- 1155 Completed
- 234 Rejected
- 1816 No Responsive Documents
- 211 Awaiting Acknowledgement
- 127 Awaiting Response
- 206 Requiring Action
- 305 Overdue
- 27 appeals awaiting response
- Allowed Response Time
- 10 days
- Average Response Time
- 69 days
- Success Rate
- Average Fee
- 9.71% of requests have a fee
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