By
Jack Authelet
The people's business must be conducted in public. That concept has been recognized since Colonial times and is reflected in the laws of the Commonwealth which essentially provide for access to all documents or meetings relating to the administration of any governmental body unless there is a specific statutory exemption which would limit access.
An office of the Commissioner of Public Records was established more than a century ago to assist the public in matters relating to public access to public records. For most of that century, access was limited to records "...which any officer or employee of the Commonwealth or of any county, city or town is required by law to receive."
A major change took place in 1973 when the law was broadened to move beyond records the agency was required by law to keep. New regulations allowed access "to all records held by governmental bodies" unless one of nine (now twelve) statutory exemptions applied. St. 1973 c. 1050.
This was a major change and provides access to many previously denied records. Its implication can be seen in the fact that fire departments are not required by law to keep a log. But if they do, in fact, maintain a log, they are creating a public record which is available to the public, subject to any statutory exemptions.
Since the law provides access to all records "made or received" by a governmental agency, all records brought to and discussed at a public meeting automatically become part of the public record. This means any report from a subcommittee, petition from voters, etc. and mail received by the agency is available to the public subject to any exclusions explained below.
In the event of a dispute over access, it is the responsibility of the custodian of the record "to prove with specificity the exemption which applies." G. L. c. 66, s 10(c). Also, Bougas v. Chief of Police of Weston, 371 Mass. 59, 61, 354 N. E. 2d 872 (1976).
Requesting
records
The Massachusetts Public Records Law (PRL) provides that any person
has an absolute right of access to public information. G. L. c. 66 s
10(a) (1992 ed.) This right of access includes the right to inspect,
copy or have copies of records provided upon payment of a reasonable
fee. Id.
Massachusetts General Laws broadly define "public records" to include all documentary materials or data, regardless of physical form or characteristics, which are made or received by any officer or employee of any Massachusetts governmental entity. G. L. c. 4 s 7(26). As a result, all photographs, papers and electronic storage media of which a governmental employee is the "custodian" constitute "public records." See 950 C. M. R. 32.03 (defining "custodian" as the government employee who has access to or control of public records.) There are, however, twelve narrowly construed exemptions to this broad definition of "public records," which are discussed in the following text in addition to records exempted by specific statute.
There are no strict rules which govern the manner in which requests for public information should be made. Requests may be oral or written and may be made in person or through the mail or E-mail. G. L. c. 66 s 10(b); 950 C. M. R. 32.05(3).
A requester is not required to specifically identify a particular record: any request which provides the custodian with a reasonable description of the desired information is sufficient. 950 C. AM. R. 32.05(4). Custodians are expected to use their superior knowledge of the records in their custody to assist the requester in obtaining the desired information. Id.
All requests must receive a response as soon as practicable, without unreasonable delay, and always within ten days. G.L. c 66 s 10(a-b); 950 C. M. R. 32.05(2).
The response must be either an offer to provide the requested materials or a written denial. A denial must detail the specific legal basis for withholding the requested materials. 950 C. M. R. 32.08(1); see also 950 C. M. R. 32.08(7) (requirement that custodian produce an index which is sufficiently specific to allow the Supervisor to make a reasoned judgment as to the public records status of a document). The legal basis must include a citation to the statutory exemption upon which the custodian relies and must also explain why the exemption applies. A denial must also advise the requester of his right to seek redress through the administrative process provided by the office of the Supervisor of Public Records (whose address and telephone number are presented elsewhere in this access section).
The mandatory disclosure provision of the PRL only applies to information which is in the custody of a governmental entity at the time the request is received. G. L. c. 4 s7(26) (defining "public records" as materials which have already been "made or received" by a public entity); G. L. c. 66 s 10(a); see 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); see also Disabled Officers Association v. Rumsfeld, 428 F. Supp. 454, 456 (D. C. C. 1977) (applying this principle in context of federal Freedom of Information Act.) Consequently, there is no obligation to create a record for a requester or to honor prospective requests. It has been noted, however, that there is nothing which prohibits a custodian from honoring such a request. (Because prospective requests are not governed by the PRL, including its maximum fee limitations, the custodian is free to negotiate all terms of the arrangement. Consequently, a subscription service can be profitable for the custodian.
Inquiries into a requester's status or motivation for seeking information are expressly prohibited. See G. L. c. 66 s 10(a) (public records are to be provided to "any person"); 950 C. M.R. 32.05(5) (custodian prohibited from inquiring into a requester's status or motivation). Consequently, all requests for public records, even if made for a commercial purpose or to assist the requester in a law suit against the holder of the records, must be honored in accordance with the prescriptions of the PRL.
G.L. Chapter 4 Section 7(26)(1992 ed.):
"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, unless such materials or data fall within the following exemptions in that they are:
Exemption (a) specifically or by necessary implication exempted from disclosure by statute;
An agency may use the statutory exemption as a basis for withholding requested materials where the language of the statute of exemption relied upon expressly states or necessarily implies the public's right to inspect records under the PRL is restricted. Attorney General v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspaper Company v. Appeals Court, 372 Mass. 539, 545-46 (1977)
Essentially, the exemption creates two categories of exempt records: records which are specifically exempted from disclosure; and those which are exempt by necessary implication. G. L. c4 s7(26)(a). Statutes which specifically exempt a record are those which expressly state that a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the PRL." See e.g., G. L. c41, s97D (all reports of rape or sexual assault "shall be kept confidential"). Statutes which exempt records by necessary implication contain language which expressly limits the dissemination of particular records to a defined group of individuals or entities. See e. g. G. L. c6 s172 ("Criminal offender record information... shall only be disseminated to: criminal justice agencies... ")
Exemption (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; G. L. c4 s6(26)(b).
There are no authoritative Massachusetts decisions interpreting exemption (b). The general purpose of the exemption (as noted in cases decided in federal challenges) 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. Department of the Air Force v. Rose, 425 U. S. 352, 362-70 (1976). Materials relating to matters such as personnel's use of parking facilities, regulation of lunch hours and statements of policies concerning sick leave are examples of the types of records to which the exemption applies. See Jordan v. Department of Justice, 591 F.2d 753, 763-71 (D.C. Cir. 1978)(construction of cognate federal provision).
The language of the federal provision is duplicated in the first clause of exemption (b). The second clause of exemption (b) contains language which requires a more restrictive application. The addition of the qualifying second clause of exemption (b) evidences a legislative intent to create an exemption which is narrower in scope than the previously enacted, parallel federal exemption. See Globe Newspaper Company v. Boston Retirement Board, 388 Mass. 427, 432-33 (1983) (where the language of a similar/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). Therefore, in Massachusetts a record custodian must demonstrate that the proper performance of necessary governmental functions requires the withholding of the requested information for the exemption to apply.
Exemption (c) personnel and medical files or information; also any other material or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy;
The privacy exemption contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Company, 388 Mass. at 432-34. The first clause creates a categorical exemption for personnel and medical information which relates to an identifiable individual and is of a "personal nature." Brogan v. School Committee of Westport, 401 Mass. 306, 308 (1987). As a general rule, medical information will always be of a sufficiently personal nature to warrant exemption. Globe Newspaper Company, 388 Mass. at 442. Personnel information is generally exempt if it is evaluative in nature. Connolly v. Bromery, 15 Mass. App. Ct. 661, 664 (1983) (evaluative materials are of a particularly personal and volatile nature.) It should be noted that public employees have a diminished expectation of privacy in matters relating to their public employment. Brogan, 401 Mass. at 308; Pottle v. School Committee of Braintree, 395 Mass. 861, 866 (1985); George W. Prescott Publishing Company v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985); Globe Newspaper Company, 388 Mass. at 436 n 15; Hastings & Sons Publishing Company v. City Treasurer of Lynn, 374 Mass. 812, 818 (1978).
The second clause of the privacy exemption applies to requests for records which implicate privacy interests but do not involve personnel and medical records. Its application is limited to "intimate details of a highly personal nature." Real Property Department of Boston, 380 Mass. at 625. Examples of "intimate details of a highly personal nature" include marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 626 n.2. Portions of records containing such information are exempt unless there is a paramount public interest in disclosure. Collector of Lynn, 377 Mass. at 156. Therefore, when applying the second clause of the exemption to requested records it is necessary to perform a two-step analysis: first, determine whether the information constitutes an "intimate detail of a highly personal nature" and second, determine whether the public interest in disclosure outweighs the privacy interest associated with disclosure of the highly personal information. Consequently, the application of the second clause of the exemption can only be determined on a case by case basis.
Exemption (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,
Exemption (d), the deliberative process exemption, provides a limited executive privilege for policy development. The exemption is intended to avoid release of materials which could taint the deliberative process if prematurely disclosed. Therefore, its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. Babets v. Secretary of the Executive Office of Human Services, 403 Mass. 230, 237 n.8 (1988). Purely factual matters used in the development of government policy are always subject to disclosure. See Environmental Protection Agency v. Mink, 410 U. S. 73,89 (1973) (construing cognate federal provision).l 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. G. L. c4, s7(26)(d); see also Moore-McCormack Lines, Inc. v. I.T.O. Corporation of Baltimore, 508 f.2d 945, 948 (197 4) (construing cognate federal provisions). Therefore, only those portions of materials which possess a deliberative or policy making character and relate to an ongoing deliberative process are exempt from mandatory disclosure.
Exemption (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,
The application of exemption (e) is limited to records which are work-related but can be characterized as personal to an employee. Examples of materials which are covered by the exemption include personal reflections on work-related activities and notes created by an employee to assist him in preparing reports for other employees or the files of the governmental entity. Clearly, however, the exemption may not be used to withhold any materials which are shared with other employees or are being maintained as part of the files of a governmental unit. G. L. c4, s7(26)(d)
Exemption (f) investigatory materials necessarily compiled out of 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,
The exemption allows investigative officials to withhold materials which could compromise investigative efforts if disclosed. There is no blanket exemption, however, for records created or maintained by investigative officials. G. L. c66 s10(a); Reinstein, 378 Mass. at 289-90. Therefore, a custodian must demonstrate a prejudice to investigative efforts in order to withhold requested materials. Accordingly, any information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Also, any confidential investigative techniques may be withheld indefinitely since their disclosure would prejudice future law enforcement efforts. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976).
The exemption is also designed to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly about matters under investigation. Accordingly, any details in witness statements which if released create a grave risk of directly or indirectly identifying a private citizen who volunteers as a witness are indefinitely exempt. Globe Newspaper Company, 388 Mass. at 438 (explanation of "identifying details" and "grave risk of indirect identification").
However, custodians of public records are not justified in withholding disclosure of an entire document merely because it contains both exempt and public information. Custodians must disclose segregable portions of an otherwise exempt record. G. L. c. 66 s 10(a) (1988 ed.)
Exemption (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;
This exemption is often cited by custodians as a basis for withholding copyrighted plans and blueprints or product specifications submitted in connection with a bid or proposal. The exemption, however, is clearly limited in its application to six criteria which must be met for it to apply. Consequently, where trade secrets or commercial or financial information are provided to the government in connection with a contract bid or in compliance with a filing requirement the exemption will not allow the withholding of the information. G. L. c4 s7(26)(g).To be exempt, trade secrets or financial information must be provided voluntarily, upon an assurance of confidentiality and solely to assist the government in the development of policy.
Exemption (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.
The exemption is designed to ensure the integrity of processes used by government to procure goods and services by allowing a custodian to withhold the proposals of early bidders from other interested parties.
The exemption addresses two types of records, each with its own time frame. Proposals and bids are exempt from disclosure until the deadline for their submission passes. This prevents late bidders from gaining an unfair competitive advantage over early bidders. The limitation on the duration of the exemption provides the public an opportunity to review the rejected proposals to ensure that tax dollars are wisely spent. The second clause of the exemption is similar to exemption (d) in its application. (See discussion of the application of exemption (d). It allows government officials to review bids and proposals in an insulated environment, but also provides for public review of all evaluative materials once a decision is made either to enter into negotiations with the successful bidder or to award the contract.
Exemption (i) appraisals of real property acquired or to be acquired until (a) 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.
Exemption (i) is legislative recognition of the need to keep confidential real estate appraisals relating to parcels which the government seeks to obtain either through a purchase or an eminent domain proceeding. Its application is limited to a defined time period.
The exemption applies to any estimation of value of property which involves an expert opinion. See Blacks Law Dictionary, p. 92 (5th Ed)(definition of "appraisal") It allows the government to be in the same position in a land deal as any private party. Obviously, parties to a land deal could be at a bargaining disadvantage if required to disclose their appraisals of the subject parcel. The exemption ensures that the government will not be at a bargaining disadvantage by allowing the other party to use the PRL to gain access to an appraisal prior to completion of negotiations or litigation.
Exemption (j) the names and addresses of any persons contained in, or referred to in, any applications for any license 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.
The exemption prevents individuals with devious motives from ascertaining who possesses firearms. It should be noted that the scope of the exemption limits its application to identifying details. Therefore, once identifying details are deleted, the remaining portions of firearms records are subject to mandatory disclosure.
Exemption (k) has been repealed.
It allowed an exemption for "that part of the registration or circulation records of every public library which reveals the identity of a borrower. Although the exemption was repealed, the Legislature retained the substance of the exemption in another section of the general laws. G. L. c78 s7. Consequently, this new statute operates through exemption (a) to provide a basis for denying access to library circulation records.
Exemption (l) test questions and answers, scoring keys and sheets, and other examination data used to administer a licensing examination; provided, however, that such materials are used to administer another examination.
Prior to the enactment of this exemption, it was possible for persons interested in taking a licensing examination to use the PRL to gain access to the questions and answers of the upcoming tests. Exemption (l) ensures that no one who takes an examination can gain an advantage through the use of the PRL.
Exemption (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 non-profit 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.
This exemption contains four criteria which must be met in order for a record to be withheld. First, the record must be a contract. Second, that contract must be for hospital or related health care services. Third, one of the parties must be a government operated medical facility. Finally, the party providing services must be one of the entities described by the exemption. Exemption (m) allows the withholding of a record only if that record satisfies all four criteria.
In addition to standard exclusions concerning the release of records, specific exemptions in other statutes override the general public records law.
1. Adoption records: Closed unless ordered released by the court. G. L. c.210, s5 C.
2. Business records, financial data, trade secrets. Trade secrets or commercial or financial information "voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality" are not available. G. L. c4, s7, cl. 26(g).
3. Census Records. The requirement for a decennial state census has been repealed. See St. 1992 C. 403 s2. Much of the same information is available from street lists prepared annual by city and town clerks. Listed are all known inhabitants seventeen or older of a given city or town. G. C. c. 51 s 6-7. In many jurisdictions, the information is available on computer tape or disk. See 950 C.M.R. 32.06(6).
4. Collective bargaining records. Not covered in exemptions but are normally not available from the municipal employer until an agreement is reached. This flows from the collective bargaining strategy and negotiation exception in the Open Meeting Law. G. L. c.39 s 23B(3).
5. Environmental Impact Reports. Generally open. All state agencies, departments and commissions are required to review and to evaluate the impact on the natural environment of all work, projects or activities conducted by them or by those to whom they issue permits. G. L. c. 30 s61. All such environmental impact reports are public documents. G. L. c. 30 s62C.
6. Confidential communications to sexual assault and domestic violence counselors. Privilege includes any written records of such communications. G. L. c. 233 s20J.
7. Hospital medical peer review committee. Reports and records are confidential (G. L. c. 111 s204) but subject to subpoena by appropriate regulatory authorities. Comm. v. Choate-Symmes Health Services, Inc., 406 Mass. 27, 545 N. E. 2d 1167 (1989).
8. Hospital records. Individual patient records are exempt. G. L.. c. 111, s70. There is no right of access to private hospitals.
9. Housing Code violations. Generally open. Complaints, inspection reports and correspondence pertaining to housing violations are public records. G. L.. c. 117 s 127B. Cunningham v. Health Officer of Chelsea, 7 Mass. App. Ct. 861, 385 N. E. 2d 1011 (1979)
10. Illegitimate births. Closed unless ordered open by the court. G. L. c. 46, s 2A.
11. Judicial conduct investigations. All proceedings of the Judicial Conduct Commission "shall be confidential until there has been a determination of sufficient cause and formal charges have been filed with the Supreme Judicial Court." G. L. c. 211C, s 6(1).
12. Lawyer disciplinary records. Normally confidential unless public reprimand, disbarment or suspension results. Supreme judicial Court Rules 4:01, S, 20.
13. Medical disciplinary records. records of complaints against and investigation of physicians by the Board of Registration in Medicine are kept confidential until "after the board has disposed of the matter under investigation by issuing an order to show cause by dismissing a complaint or taking other final action." G. L. c. 112, s 5. In August 1996, G. L. c. 112, s5 was amended to include access to records of physician malpractice pay-outs and settlements, certain disciplinary records, criminal history records and physician profile information including education, awards, hospital affiliations and insurance plans. This provision became effective in 1996 and physician profile information may be obtained by calling (800) 377-0550.
14. Personal data on government employees. Such data and personal information maintained by government agencies are exempt. G. L. c. 66A.
15. Home addresses of law enforcement, judicial and correctional personnel and crime victims. A 1996 amendment to G. L. c. 66, s10 provided that such addresses and home numbers are not public records. St. 1996 c. 39. It stated:
"The home address and home telephone number of law enforcement, judicial, prosecutorial, department of youth services, correctional and any other public safety and criminal justice system personnel shall not be public records in the custody of the employers of such personnel and shall not be disclosed; provided, however, that such information may be disclosed to an employee organization under chapter one hundred and fifty E or to a criminal justice agency as defined in section one hundred and sixty-seven of chapter six. The name and home address and telephone number of a family member of any such personnel shall not be public records in the custody of the employers of the foregoing persons and shall not be disclosed. The home address and telephone number, or place of employment or education of victims of adjudicated crimes and of persons provided or training in family planning services and the name and home address and telephone number, or place of employment or education of a family member of any of the foregoing shall not be public records in the custody of a government agency which maintains records identifying such persons as falling within such categories and shall not be disclosed."
16. Psychotherapist -- patient privilege. Includes written communications and records and notes on oral communications. G. L. c. 233, s 20B.
17. Rape reports. Reports of rape and sexual assaults are exempt. G. L. c. 41, s 97D.
18. Social workers -- client privilege. Includes records of communications and services of licensed or state social workers. G L. c. 112, s 135A.
19. Specific diseases and medical treatment. Beyond general patient record confidentiality and the lack of access to private institutions, further regulations protect the confidentiality of various medical records, such as births of children with congenital deformity or birth defects (G. L. c. 111, s 67E), Alcoholism treatment (G. L. c. 111B, s 11), treatment of Reyes syndrome (G. L. c. 111, s 110B), registry of malignant diseases (G. L. c. 111, s 111B), infectious disease reports (G. L. c. 111D, s 6), venereal disease treatment (G. L. c. 111, s 119), drug dependency treatment (G. L. c. 111E, s 18(a), mentally ill persons (G. L. c. 123, s 36), records of tests for AIDS (G. L. c. 111, s 70F) and applications for status of sexually dangerous persons. G. L. c. 123A, s 8. restrictions may not apply to records not identifying individuals. See e. g., c. 111, s 191 (lead paint poisoning).
20. State tax returns. Public officials are prohibited from disclosing any state tax information other than name and address of person filing return except in tax collection or evasion proceedings. G. L. c. 62c, s 21. This exemption does not apply to local tax records, which are public. G. L. c 59, s 43.
21. Abatement applications: G. L. c. 59, s 60.
22a. Absentee ballots: G. L. c. 54, s 108.
22. Air Pollution Control: G. L. c. 111, s 142B.
23. Application of law, exemption of Legislature: G. L. c. 66, s 18.
24. Bank examination records: G. L. c. 167 s 2.
25 . Blind persons, records: G. L. c. 6, s 149.
26. Business schools, license application records: G. L. c. 75D, s 3.
27. Cancer records, Dept. of Public Health: G. L. c. 111, s 111B.
28. Capital facility construction project records: G. L. c. 30, s 39R.
29. Clergymen, communication of spiritual information: G. L. c. 233, s 20A.
30. Conflict of interest, request for an opinion: G. L. c. 268A, s 22.
31. Consumer protection investigation: G. L. c 93A, s 6(6).
32. Controlled substance Act violation: G. L. c. 94C, s 47.
33. Controlled substance seizure records: G. L. c. 94C, s 47A.
34. Delinquency, court record entry: G. L.. c. 276, s 100B.
35. Delinquent children, inspection of records: G. L. c. 119, s 60A.
36. Department of Youth Service records: G. L. c. 120, s 21.
37. Dept. of Public Health, inventory of Health Care Services: G. L. c. 111, s 25A.
38. Disease statistics, labor and industry department: G. L. c. 149, s 11.
39. Drug addicts, treatment records: G. L. c. 111E, s 18.
40. Employment agencies data: G. L. c. 140, s 46R.
41. Evaluations of Special Needs Children: G. L. c. 71B, s 3.
42. Executive sessions: G. L. c. 30A, s. 11A; G. L. c. 34, s 9F, s 23B.
43. Fetal death reports: G. L. c. 111, s 202.
44. Firearms Bureau records: G. L. c. 66, s 10(d).
45. Genetically linked diseases, testing records: G. L. c. 76, s 15B.
46. Handicapped or aged persons, financial assistance: G. L. c. 66, s 17A.
47. Handicapped persons, rehabilitation commission: G. L. c. 6, s 84.
48. Hazardous substances reports: G. L. c. 111F, s 21.
49. Hazardous waste disposal site records: G. L. c. 21D, s 6.
50. Hazardous waste facilities: G. L. c. 21C, s 12.
51. Historical and archaeological sites and specimen inventory: G. L. c. 9, s 26A.
52. Hospital reports of staff privilege revocation: G. L. c 111, s 53B.
53. Hypodermic instruments and sales records: G. L. c 94C, s 27.
54. Impounded birth records: G. L. c. 46, s 2A.
55. Industrial Finance Agency, commercial or financial information: G. L. c 23a, s 31.
56. Inspection of official studies records: G. L. c. 71, s 34E.
57. Inspector General investigations, records: G. L. c 12A, s 13.
58. Insurance acquisition records: G. L. c. 175, s 193 M.
59. Insurance records: G. L. c. 164, s 85.
60. Intensive care unit for women, records: G. L. c. 123, s 36.
61. Juror questionnaires: G. L. c. 234A, s 23.
62. Jury list: G. L. c. 234, s 4.
63. Juvenile records at central registry: G. L. c. 119, s 51F.
64. Juvenile records: G. L. c. 119, s 60.
65. Mass. Commission Against Discrimination investigatory files: G. L. c 151B, s 5,
66. Massachusetts technology development, corporations, corporate records: G. L. c. 40G, s 10.
67. Mentally retarded citizens, intermediate care facility inspection records: G. L. c. 111, s 72.
68. Metropolitan Air Pollution Control District Records: G. L. c. 111, s 142B.
69. Merit Rating Plans, motor vehicle insurance: G. L. c. 6, s 183.
70. Natural Heritage programs, data base: G. L. c. 66, s 17D.
71. Patient abuse information; intermediate care facility for mentally retarded citizens, convalescent, nursing or rest homes: G. L. c. 111, s 721.
72. Patient's rights to confidentiality of records; medical and mental health facilities: G. L. c. 111, s 70E.
73. Probation officers, Boston municipal courts, records: G. L. c. 276, s 90.
74. Protective services records, aged persons: G. L. c. 19A, s 23.
75. Public assistance records, aged persons, dependent children, handicapped persons: G. L. c 66, s 17A.
76. Public assistance, wage reporting system: G. L. c. 62E, s 8.
77. Public health care benefit eligibility disclosure: G. L. c. 111, s 25A.
78. Public officers and employees: financial interest disclosure: G. L. c. 268B, s 3.
79. Rest homes, records: G. L. c. 111, s 72.
80. Restraint records: G. L. c. 123, s 37.
81. Scientific studies and research: G. L. c. 111, s 24A.
82. Social work records: G. L. c. 112, s 135.
83. Special education records: G. L. c. 15, s 1M.
84. Student records: G. L. c. 71, s 34D. (See following section)
85. Vocational rehabilitation records: G. L. c. 6, s 84.
Access to school, university records
Student records are not available if they pertain to identifiable individuals. G. L. c. 71, s 34D; 603 CMR 23.07(4).
Trustee records are available subject to general exclusions in the public record laws.
Athletic records are available subject to limitations on data relating to identifiable individual and medical reports relating to an individual.
Student evaluations of teachers are personnel records of a personal nature relating to identifiable individuals and not available. Connolly v. Bromery, 15 Mass. App. 661, 447 N. E. 2d 1265 (1983).
G. L. Chapter 66, Section 10 (1992 ed.)
(a) Every person having custody of any public record, as defined in clause twenty-six of section seven of chapter four, shall, at reasonable times and without unreasonable delay, permit it, or any segregable portion of a record which is an independent public record, to be inspected and examined by any person, under his supervision, and shall furnish one copy thereof upon payment of a reasonable fee. 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 each search. The following fees shall apply to any public record in the custody of the state police, the Massachusetts bay transportation authority police or any municipal police department or fire department: For preparing and mailing a motor vehicle accident report, five dollars for not more than six pages and fifty cents for each additional page; for preparing and mailing a fire insurance report, five dollars for not more than six pages, plus fifty cents for each additional page; for preparing and mailing crime, incident or miscellaneous reports, one dollar per page; for furnishing any public record, in hand, to a person requesting such records, fifty cents per page. A page shall be defined as one side of an eight and one-half inch by eleven inch sheet of paper.
(b) A custodian of a public record shall, within ten days following receipt of a request for inspection or copy of a public record, comply with such request. Such requests may be delivered in hand to the office of the custodian or mailed via first class mail. If the custodian refuses or fails to comply with such a request, the person making the request may petition the supervisor of records for a determination whether the record requested is public. Upon the determination by the supervisor of records that the record is public, he shall order the custodian of the public record to comply with the person's request. If the custodian refuses or fails to comply with any such order, the supervisor of records may notify the attorney general or the appropriate district attorney thereof who may take whatever measures he deems necessary to insure compliance with the provisions of this section. The administrative remedy provided by this section shall in no way limit the availability of the administrative remedies provided by the commissioner of administration and finance with respect to any officer or employee of any agency, executive office, department or board; or shall the administrative remedy provided by this section in any way limit the availability of judicial remedies otherwise available to any person requesting a public record. If a custodian of a public record refuses or fails to comply with the request of any person for inspection or copy of a public record or with an administrative order under this section, the supreme judicial or superior court shall have jurisdiction to order compliance.
(c) In any court proceeding pursuant to paragraph (b) there shall be a presumption that the record sought is public, and the burden shall be upon the custodian to prove with specificity the exemption which applies.
(d) The clerk of every city or town shall post, in a conspicuous place in the city or town hall in the vicinity of the clerk's office, a brief printed statement that any citizen may, at his discretion, obtain copies of certain public records from local officials for a fee as provided for in this chapter.
The commissioner of public safety and his agents, servants, and attorneys including the keeper of the records of the firearms record bureau of said department, or any licensing authority, as defined by chapter one hundred and forty shall not disclose any records divulging or tending to divulge the names and addresses of persons who own or possess firearms, rifles, shotguns, machine guns and ammunition therefore, as defined in said chapter one hundred and forty and the names and addresses of persons licensed to carry and/or possess the same to any person, firm, corporation, entity or agency except criminal justice agencies as defined in chapter six and except to the extend such information relates solely to the person making the request and is necessary to the official interests of the entity making the requests.
Computer
records
The PRL was drafted at a time when legislators could not have
envisioned the impact computers would have on the government's
ability to collect, store, compile and disseminate information. See
St. 1973, c. 1050 (legislation providing for the current statutory
definition of "public records"); see also "The report of the First
National Conference on Issues Concerning Computerized Public Records"
which discusses the application of the legal principles embodied in
the current definition of "public records" to computerized records.
The report may be obtained by sending $2.40 (to cover postage) to:
The Division of Public Records, Room 1701, One Ashburton Place,
Boston, Massachusetts 02108. Copies may also be acquired in person
without charge. The legal principles embodied in the PRL, however,
may be readily transposed into legal principles governing access to
information maintained in an automated system.
The statutory definition of "public records" does not distinguish between traditional paper records and records stored in the computer medium. G. L. c4, s7(26). Rather, it provides that all information made or received by a public entity, regardless of the manner in which it exists, constitutes "public records." Computer cards, tapes or diskettes are all independent public records which are subject to the same requirements of the PRL as are paper records. Therefore, a custodian is obliged to furnish copies of non-exempt portions of computerized information at the cost of reproduction unless otherwise provided by law.
It should be noted, however, that just as a custodian is not required to create a paper record in response to a request for information, a custodian is not required to create a computer record in response to a request for information. Conceptually, a computer is like a large filing cabinet. The "files" in the cabinet consist of any compilations of information contained on a tape or a diskette which can be independently retrieved through the use of existing computer programs. A custodian is only obliged to provide access to the existing "files" of a cabinet. Therefore, a custodian is not required to create a new computer program to provide a requester with computerized information in a desired format. There is, however, an exception to this general rule when the reprogramming is needed to comply with the segregation provision of the law.
For example, suppose a request is made for specific information maintained in a broader computer data base. The custodian does not have a computer program which allows him to make a copy from his master tape which specifically selects the desired information; to provide the requested information in the desired format requires the creation of a new program. In this situation, the custodian is only obliged to notify the requester that there is no specific record which is responsive to his request. The custodian should also advise the requester of the available formats and let the requester determine which of the existing formats or "files" is best suited for his needs. See 950 C.M. R. 32.05(4) (a custodian shall use his superior knowledge of his files to assist a requester in obtaining the desired information.)
It should be noted there is nothing which prevents a custodian from creating a program which will generate requested information in the desired format. In fact, the custodian can benefit from such an arrangement. The requester can be asked to pay for the creation of the program which, depending on the arrangement, may remain the property of the custodian. (Arrangements which do not apply to existing records are not governed by the provisions of the PRL or PRAR. Consequently, a custodian is free to set any fee for providing such services.) As a result the custodian is able to add a new program to his library without any expense to the government.
If denied
access:
If you are denied access to a document, it is the responsibility of
the custodian of that document to state the statutory reason for
denial, quoting chapter and verse of the law on which the denial is
based. G. L. c. 66 s 10(c).
Said denial should then be appealed to the highest ranking person in the office which issued the denial and to any other local official who may have authority over that office.
It is important to be polite and professional when making requests, and to get denials in writing if possible. You should always make every attempt to resolve the problem locally before making an appeal to a higher authority.
If you believe you have improperly been denied access to public documents and you cannot resolve the problem locally, an appeal should be made to:
Supervisor of Public Records
Commonwealth of Massachusetts
One Ashburton Place, Room 1719
Boston, Massachusetts 02108
Telephone 617/727-2832
If records are not being kept or maintained in a manner prescribed by law, the appeal should be made to your District Attorney or to:
Office of the Attorney General
One Ashburton Place
Boston, Massachusetts 02108-1698
Telephone 617/727-2200