Foreword

While open government traditions in Massachusetts date back to colonial times, the Public Records and Open Meeting laws of the Commonwealth today are essentially statutory.

The statutes on the two subjects are in different parts of the General Laws and have evolved separately. Both reached essentially their present form in the mid-1970s.

In Massachusetts, legislative committee reports are uncommon and legislative debates are not reported. It is therefore unusual to have meaningful legislative history and there is none of any great significance with respect to either of the present open government statutes.

There is considerable case law on both subjects. However, the reported decisions almost universally construe the statutes and in particular the scope of the exceptions provided therein, rather than create a separate body of judicially originated open government law. The situation is different with respect to open courts and court records. The judicial branch is not subject to either the Public Records or Open Meeting laws; the general trend of increased access to Massachusetts courts and their records is the result of state and federal court decisions, as well as of initiatives to make court dockets and records available online.

The Public Records and Open Meeting laws are not integrated, and each has followed its own course of development.

PUBLIC RECORDS LAW

Statutory provisions relating to public records go back more than 150 years. See St. 1851 c. 161, § 4, which provided that "[a]ll county, city or town records and files shall be open to public inspection."

The statewide office of Commissioner of Public Records has existed since the 1890s. St. 1892 c. 333, § 1. A definition of "public record" first appeared in 1897 but was essentially limited to "any written or printed book or paper or any map or plan of [a governmental entity] in or on which any record or entry has been or is to be made in pursuance of any requirement of law, or any written or printed book . . . which any officer or employee of the Commonwealth or of any county, city or town is required by law to receive." St. 1897 c. 439, § 1.

A major change occurred in 1973, when the Legislature extended the definition of public records to include all records held by governmental bodies unless one of nine (now 15) fairly narrow statutory exemptions applies. St. 1973 c. 1050.

The statute applies to all levels of governmental bodies in the Commonwealth. It does not, however, cover records of the legislative or, generally, the judicial branches.

What is generally called the "Public Records Law" is found primarily in two chapters of the General Laws. The term "public records" is defined in G.L. c. 4, § 7, cl. 26. The procedures for obtaining access to such records are set forth principally in G.L. c. 66, § 10(b). These latter are supplemented by administrative regulations. See 950 CMR 32:01, et seq.

However, there are also scattered throughout the General Laws specific provisions in other statutes declaring particular categories of documents to be or not to be public records or requiring that a particular category of record be kept confidential. Such exceptions and special rules are particularly common in the health and welfare areas.

The basic statutes have existed in substantially their present form since 1973. Over the years, they have acquired considerable judicial gloss and, while the statutory exemptions have been somewhat expanded, they have not been the subject of major legislative amendments.

The fundamental presumption is that records maintained in public offices are public. In the event of a dispute, the burden is on the custodian "to prove with specificity the exemption which applies." G.L. c. 66, § 10(c). Bougas v. Chief of Police of Lexington, 371 Mass. 59, 61, 354 N.E.2d 872, 876 (1976).

Opposition to the general principles of open government and access to public records has come primarily from three sources. They are:

1. Entrenched public officials at both the local and state levels. Such agencies and/or individuals have been the cause of much litigation.. At the statewide level, the Supervisor of Public Records in the Office of the Secretary of the Commonwealth has generally been cooperative with the press and other advocates of open government, and has developed a considerable body of written administrative opinions on particular disputes and custodians of records.

2. Specific interest groups. These are generally groups that want one particular type of record removed from the public view. They are often successful. To cite a few examples, such groups succeeded in having the general definition of "public records" amended to exclude the names and addresses of persons holding any kind of firearms license. G.L. c. 4, § 7 cl. 26(j). Likewise, amendments to other statutes now require that: "[a]ll reports of rape and sexual assault . . . shall not be public records and shall be maintained by the police departments in a manner which will assure their confidentiality" (G.L. c. 41, § 97D); that no test for AIDS be made or disclosed without the patient's written consent (G.L. c. 111, § 70F); that public library records which reveal the identity and intellectual pursuits of persons using the library are not public (G.L. c. 78, § 7); and that the home addresses and telephone numbers of judges, prosecutors, law enforcement officials and crime victims are deleted from all public records (G.L. c. 66, § 10).

3. General privacy advocates. In Massachusetts, as in most other states, interest in limiting governmental intrusions into individual privacy quickened in the 1970s. This led to passage of the Fair Information Practices Act (G.L. c. 66A), modeled in considerable part on the Federal Privacy Act, and the Criminal Offender Record Information Act (G.L. c. 6, § 167-178B) which regulates the collection of criminal records and restricts their dissemination. There has also been considerable litigation over the scope of the privacy exemption to the Public Records Law and its interrelation with the general privacy statutes. G.L. c. 214, § 1B. See, e.g., Pottle v. School Committee of Braintree, 395 Mass. 861, 482 N.E.2d 813 (1985) (privacy of municipal school employees not invaded by disclosure of home addresses).

OPEN MEETING LAW

The first Massachusetts Open Meeting Law was enacted in 1958 largely at the insistence of the press and what is now the Massachusetts Newspaper Publishers Association. It was rewritten into substantially its present form in 1975. St. 1975, c. 303.

It applies at all levels of government but covers only multi-member boards, committees and commissions, and not sole executives such as the governor or the mayor of a city. It does not apply to the state legislature or to the judiciary.

For procedural reasons, it appears in close to identical form in three different chapters of the General Laws: G.L. c. 30A, §§ 11A to 11A 1/2 apply to state governmental bodies; G.L. c. 34, §§ 9F to G apply to counties; and G.L. c. 39, §§ 23A to C and 24 apply to municipalities. Counties are of minor importance in Massachusetts and most of the controversies and litigation have arisen at the municipal level. Accordingly, the statutory references in the balance of this discussion are normally to the municipal sections of the statute.

There are other statutes allowing closure of meetings of particular kinds of committees for specific purposes, but the law is largely contained in the Open Meeting Law proper.

Since 1975, the Open Meeting Law has acquired considerable judicial gloss but has not been the subject of major legislative amendments, although the statutory exceptions have occasionally been expanded.

While the law has no formal legislative history or preamble, it is well established that its purpose was "to eliminate much of the secrecy surrounding the deliberations and decisions on which public policy is based." Ghiglione v. School Committee of Southbridge, 376 Mass. 70, 72, 378 N.E.2d 984, 987 (1978). Unlike the Public Records Law, the Open Meeting Law does not provide for a statewide official with general supervisory responsibilities or for a statutory administrative appeal. Accordingly, while some District Attorneys have been helpful, the only formal remedies for violations are judicial. A 1993 amendment allows judicially imposed fines of up to $1,000 against the government body for violations. At the time of this outline going to press, bills sponsored by the Massachusetts Newspaper Publishers Association were pending in the Massachusetts legislature to impose penalties for Open Meeting Law violations. Those bills -- H. 3517, H. 3518, H. 3519, H. 3619, H. 3620, and H. 3621 -- would:

(1) Make knowing and intentional violations of the law a misdemeanor punishable by fine of up to $1,000 for a first offense and up to $2,500 for subsequent offenses;

(2) Authorize courts to impose a $500 civil fine against public officers who attend an illegal executive session;

(3) Authorize an award of attorneys' fees and costs to successful challengers of closed meetings; and

(4) Extend the $1,000 civil fine, now permissible against local bodies that violate the law, so that it will also apply to state bodies that violate it.

As might be expected, this law has its opponents. They have sought in recent years to amend the statute, to seek broad judicial construction of exemptions for executive (closed) session and simply to evade it.

Privacy-interest proponents have been less active with respect to open meetings than with public records. Rather, opposition has centered in the following areas:

1. Officials, usually at a local level, who do not believe in the principles of open government. The most common techniques used to avoid or evade the statute are informal meetings to pre-decide issues, using executive sessions to discuss issues not within the statutory exceptions, and taking a very broad reading of the proper purposes for executive sessions.

2. Collective bargaining. Local officials and public employees organizations have been largely successful in having both collective bargaining and discussions of collective bargaining strategy limited to closed sessions. See G.L. c. 39, § 23B(3).

3. Personnel decisions and appointments. Disciplinary proceedings against public employees are normally conducted in executive session unless the employee objects. See G.L. c. 39, § 23B(l), (2). The appointment process has been more of a battleground. A screening committee is subject to the Open Meeting Law only if it is appointed by a governmental body (such as a school committee, as opposed to a school superintendent). Even where the Open Meeting Law applies, the screening committee may operate in private only up to the point of conducting a preliminary screening of candidates to recommend to the appointing authority, and even then only if the committee has found that "an open meeting will have a detrimental effect in obtaining qualified applicants." (G.L. c. 39, § 23B(8); Gerstein v. Superintendent Search Screening Committee, 405 Mass. 465, 471-2, 541 N.E.2d 984, 987-8 (1989); Connelly v. School Committee of Hanover, 409 Mass. 232, 237 n.7, 565 N.E. 2d 449, 451 n.7 (1991).) The present position of most municipalities is that only "finalists" need to be publicly identified and interviewed.

Submit a comment

Have a tip or suggestion for other readers regarding this section? Please pass it on by filling out the form below. Entries may be shortened, edited, or even deleted if we feel they are not helpful to journalists or media attorneys using open records laws.

The Reporters Committee for Freedom of the Press is pleased to make this comprehensive guide available to you at no cost. We hope you will find it useful and consider buying a copy (or just contributing directly) to help underwrite our efforts and enable us to keep producing publications that help journalists overcome the daily legal hurdles they encounter.

© 2006, 2001, 1997, 1993, 1989 The Reporters Committee for Freedom of the Press, 1101 Wilson Blvd., Suite 1100, Arlington, VA 22209. Phone: (703) 807-2100 • (Contact us.) See copyright page for reprint information for classroom or nonprofit use.