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Massachusetts

Open Government Guide

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Please note that this chapter is somewhat out-of-date and currently in the process of being updated.  An updated version of this chapter should be available this fall.  Special thanks to the original author of this chapter, Robert A. Bertsche, of Prince Lobel Tye LLP.

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Foreword

The public records and open meetings laws of Massachusetts are among the weakest in any of the 50 states.  While it may be true that open government traditions in Massachusetts date back to colonial times, this “birthplace of democracy” today is led by a Legislature that operates largely in secret and a Governor who claims he is not subject to the state’s public records law. A 2008 nationwide study of public access to official records in the 50 states gave Massachusetts a failing grade of F.  (Better Government Association and National Freedom of Information Coalition, Results and Criteria of BGA/NFOIC Survey.) With respect to the Commonwealth’s courts and court records, where the public’s rights of access are the product of evolving judicial decisions supplemented by court rules, recent decades have seen a modest expansion of rights. When it comes to state, county, and municipal agencies, however, the public’s rights of access are more or less frozen in a motley collection of innumerable statutes, the most significant of which are the Public Records Law (codified at Chapter 66 of the Massachusetts General Laws (G.L. c. 66)) and the Open Meeting Law (G.L. c. 30A).

Not only are those two statutes located in different parts of the General Laws, they have also evolved independently of each other. The Public Records Law, which is enforced by the Office of the Secretary of the Commonwealth, reached essentially its present form in the mid-1970’s. The Open Meeting Law was revised in 2010, at which time responsibility for its enforcement – previously shared by the Attorney General (for state agencies) and each county’s District Attorney (for county and municipal agencies) – was consolidated at the Attorney General level.

There is considerable case law applying both the Public Records Law and the Open Meeting Law as they apply to state and local agencies. The court decisions tend to be brief and pragmatic; they are almost universally the product of statutory construction, rather than any separate body of judicially originated open government law. (In Massachusetts, legislative committee reports are uncommon and legislative debates are not reported. It is therefore unusual to find any meaningful record of legislative history to shed light on how a statute is to be construed.)

When challenged, both statutes are to be construed against a background presumption of openness (G.L. c 66, §10C (public records); 90 Code of Massachusetts Regulations (CMR) 32.08(4) (open meetings)).  But neither statute sets out substantial penalties against agencies that do not comply, with the result that there can sometimes be a substantial gap between what the law commands and what the government agencies do as a matter of practice.  That gap is widest, of course, in those areas where members of the public and the media have not been vigilant in holding the government bodies to account.

With respect to other access issues, the record is mixed.  There continue to be occasional cases of reflexive court closures or routine impoundment of documents (particularly in the probate and family courts).  Nevertheless, the Supreme Judicial Court has been receptive to hearing emergency challenges of lower court access orders.  Even when no third party has protested, judges in the Massachusetts federal district court and First Circuit Court of Appeals have expressed a conscious determination not to rubber-stamp litigants’ joint motions to seal court filings or settlement agreements.

The Commonwealth lags behind other states in the extent to which public documents are made affirmatively available online.  Federal court filings can generally be downloaded from public web sites; the equivalent state Superior Court sites generally provide online access to court dockets but not to individual filings.  The Supreme Judicial Court offers live and archived webcasts of oral arguments, and one trial court is experimenting with routine live-streaming of its proceedings; but the efforts of one federal district court judge to allow webcasting of a trial involving music downloading were unceremoniously rebuffed by the Court of Appeals.  Despite the availability of online legislative records, it takes a Kremlinologist to reliably follow a bill’s progress through the State House.  Gov. Patrick’s lackluster record on governmental transparency – including his office’s insistence that it can unilaterally exempt itself from the Public Records Law – has proved disappointing to many governmental watchdogs.

PUBLIC RECORDS LAW

History and Scope.  Statutory provisions relating to public records go back more than 150 years, but early efforts were “limited and ‘disappointingly vague.’”  Suffolk Constr. Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444, 453 n.14, 870 N.E.2d 33, 40 n.14 (2007), quoting A.J. Cella, Administrative Law and Practice § 1161, at 488 (1986). See, for example, 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 1890’s. 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.  In other words, the public had a right only to those records that the government was legally required to keep.

A major change occurred in 1973, when the Legislature extended the definition of public records to include all records held by governmental bodies, whatever the reason for their creation, unless one of nine fairly narrow statutory exemptions applied. St. 1973 c. 1050.  The number of exemptions has doubled since then, but the basic structure of the law has otherwise remained the same.  The statute applies to all levels of governmental bodies (state, county, and local), but it does not cover records of the legislative or, generally, the judicial branches.  In recent years, the Governor’s Office has argued that the law does not even apply to the Governor, although the statute provides little support for that position.

Structure.  What is generally called the "Public Records Law" is found primarily in two chapters of the General Laws. The first is the definition of "public records," which appears 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 provisions are supplemented by administrative regulations located at 950 CMR 32.01, et seq. (Copies of the statutory and administrative provisions are appended to this outline.)  Enforcement of the law falls, in the first instance, to the Division of Public Records of the Secretary of the Commonwealth, but direct appeal may also be made to the state courts. Alan N. Cote served as Supervisor of Public Records for 10 years until his untimely death, from cancer, in May 2011.  Since then, and pending the Governor’s appointment of a successor, the office has been led by Chief Legal Counsel Laurie Flynn.

Frequently overlooked, however, are the scores upon scores of statutory provisions scattered throughout the General Laws declaring that certain particular categories of documents must be kept confidential, or are or are not to be deemed public records. Such exceptions and special rules are particularly common in the health and welfare areas, and their interplay with the provisions of the Public Records Law is sometimes far from self-evident.  The result is that while the Public Records Law provides a reliable gauge of the procedure to be followed when seeking public records, it is merely a starting point when it comes to determining exactly what records are indeed “public,” to what extent, and under what circumstances.

Over the decades, the public records statutes have been the subject of considerable judicial gloss. The cases repeat the fundamental presumption 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).

Interest Groups.  A number of Massachusetts organizations have advocated to strengthen the Public Records Law.  These include the Massachusetts Newspaper Publishers Association, New England Newspaper and Press Association, New England First Amendment Coalition, the Boston University Center for Investigative Reporting, the Civil Liberties Union of Massachusetts, and local chapters of the Society for Professional Journalists, Investigative Reporters and Editors, Massachusetts Public Interest Research Group, and Common Cause.  CommonWealth magazine has been particularly outspoken in reporting on the deficiencies of the state’s public records provisions.

Advocates for limiting the scope of open government provisions and access to public records fall into three general categories. They are:

1. Certain public officials at both the local and state levels.  The level of compliance with the Public Records Law varies considerably from community to community. It is not unusual that municipal leaders will refuse to disclose certain public records despite warnings by their legal counsel that they are required to make the disclosure.  See, e.g., “Selectmen are Keeping their Mail Private,” Boston Globe, Nov. 6, 2010 (reporting that Town of Winchendon adopted policy that all mail to selectmen shall be confidential, despite town counsel’s warning that the policy violates the Public Records Law). The level of police department cooperation in some communities is of particular concern. 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, as well as the home addresses and telephone numbers of virtually every public employee in the state and many of their family members. G.L. c. 4, §  7 cl. 26(j), 26(o), 26(p).  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 has increased in proportion to the ease of widespread distribution of data over the internet. Privacy concerns 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) (later overruled by statute, G.L. c. 4, § 7, cl. 26(o)).

OPEN MEETING LAW

History.  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, then underwent a significant revision, effective 2010, when the state’s new Ethics Reform Act revamped the open meeting procedures without fundamentally affecting the underlying transparency rules. St. 2009, c. 28.

Summary.  The statute applies to meetings of multi-member “public bodies” at the state, county, and municipal levels.  This being Massachusetts, however, it excludes committees of the state Legislature and bodies appointed to advise the governor or other “constitutional officer.”  Bodies within the judicial branch are also outside of the statute’s purview.  Where it applies, the statute mandates notice and posting of meeting times; limits public officials’ deliberation of governmental matters outside of a public session; and mandates not only that minutes be kept, but that, in many cases, they be instantly available to the public upon request.  Parties claiming violation of the law may seek administrative enforcement by the Attorney General’s Office, or may file an action in court; additionally, public bodies may appeal an adverse AG ruling to the courts.  If a public body is found to have intentionally violated the statute, it may be assessed a civil penalty of not more than $1,000 for each such intentional violation.

Compared to the Public Records Law in Massachusetts, which contains only a portion of the state’s statutory provisions regarding access to records, the Open Meeting Law is far simpler to administer, because it largely occupies the field.  While there are a few other statutes permitting closure of meetings of particular kinds of committees for specific purposes, the state’s open meeting provisions are largely contained within the Open Meeting Law itself.  There are also “only” 10 enumerated purposes for which a meeting may lawfully be closed to the public, as opposed to the 18 exceptions (and counting!) within the Public Records Law.

2010 Changes.  The most significant of the 2010 changes was to centralize enforcement of the law by transferring enforcement obligations from the state’s 11 district attorneys and consolidating it in the Attorney General’s Office.  G.L. c. 30A, § 25. The move was intended to remove inconsistencies in enforcement from one county to the next, as well as to provide more education and outreach to government officials statewide.  “Open Meeting Law Guide” (Office of Att’y Gen’l, July 1, 2010), at i.  One fortunate consequence has been that the provisions of the Open Meeting Law now appear in a single statute, G.L. c. 30A, § 19(a), instead of being distributed throughout the Commonwealth’s general laws, once for state governmental bodies (G.L. c. 30A, §§ 11A to 11A½), a second time for counties (G.L. c. 34, §§ 9F to 9G), and a third time for municipalities (G.L. c. 39, §§ 23A-C, 24).  In and of itself, that change is more optical than substantive, because the three separate laws had been virtually identical, and most of the case law involved disputes at the municipal level.

The AG’s new “Division of Open Government” was created at that time in order to provide training, respond to inquiries, investigate complaints, and to make findings and take remedial action to address violations.  Id. at 1. In its first 12 months, the division (we’ll eschew the obvious acronym) investigated 116 complaints, resolved 51 cases (34 with formal determinations, another 17 informally), conducted or participated in 47 trainings, and reportedly fielded more than 2,000 inquiries.  (It also blew through two directors in the first year, and is now on its third, Amy Nable.)  See R. Ambrogi, “AG Releases Figures on First Year of Open Meeting Law, www.medialaw.legaline.com (June 29, 2011).  It also has a robust website that posts all formal determinations.

Education and Training. According to the Attorney General’s Office, the revisions to the law in 2010 has brought a heightened emphasis on training of local officials.  Within two weeks of qualification for office, all members of public bodies must certify in writing: (1) that they have received the state’s packet of Open Meeting Law Materials (consisting of a copy of the statute, the Attorney General’s regulations under the statute, and certain educational materials prepared by the Attorney General’s office that explain the law’s requirements), and (2) that they understand the requirements of the statute and the consequences of violating it.  Beyond its precatory function, the certificate does not appear to create any independent obligations; it is to be filed and maintained in the records of the appointing authority or administrator of the body or agency in question.  G.L. c. 30A, § 20(g).

Purposes. While the law has no formal legislative history or preamble, the state’s highest court has described its purpose as “eliminate[ing] 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). Interestingly, the Attorney General’s Office today uses less fervid prose, even suggesting that openness necessarily reduces the government’s smooth functioning.  According to the AG, the laws purposes are “to ensure transparency in the deliberations on which public policy is based” and “to balance the public’s interest in witnessing the deliberations of public officials with the government’s need to manage its operations efficiently.”  “Open Meeting Law Guide” (Att’y Gen’l’s Office, July 1, 2010).

Interest Groups.  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.

Others have sought to strengthen the law, seeking unsuccessfully to enact provisions that would provide attorney fees for successful challengers of the law, would make knowing and intentional violations a misdemeanor, and would fine any public official who attends an illegal executive session.

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Open Records

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I. Statute

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A. Who can request records?

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1. Status of requester

"Any person" can request a public record. G.L. c. 66, § 10(a). While not defined in the statute, this term appears to include non-residents and aliens.  The custodian may not inquire about a requester’s status or motivation.  950 CMR 32.05(5); Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at p. 7.  The Supervisor of Public Records has ruled that the law “does not distinguish between requesters,” and on that grounds he denied a citizen’s request for recordings of calls she herself made to local police.  See C. Herman, “Sifting through records appeals,” CommonWealth (Jan. 13, 2011).  Nor does entitlement to information depend on the level of a requester’s need.  Torres v. Attorney Gen., 391 Mass. 1, 10, 460 N.E.2d 1032 (1984).  Nonetheless, the Supervisor of Public Records has said that in applying the investigation exemption (exemption (f)), the determination of what are exempt “identifying details” may depend upon the requester’s familiarity with the incident in question.  Guide, at 16 (not citing any supporting case law).  Such a consideration would seem to be easily subject to manipulation by having a different person make the request, but a similar situation exists with respect to the Homeland Security exemption (exemption (n)).

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2. Purpose of request

The right to receive records is not limited by the requestor's purpose or reason for wanting the records. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64, 354 N.E.2d 872, 877 (1976); Direct-Mail Svce., Inc., 296 Mass. 353, 356, 5 N.E.2d 545, 546 (1937); Logan v. Commissioner of Dep’t of Ind’l Accidents, 68 Mass. App. Ct. 533, 534 n.3, 863 N.E.2d 559, 561 n.3; Antell v. Attorney Gen’l, 52 Mass. App. Ct. 244, 245 n.1, 752 N.E.2d 823, 824 n.1 (2001); Cunningham v. Health Officer of Chelsea, 7 Mass. App. Ct. 861, 862, 385 N.E.2d 1011, 1012-13 (1979).  Commercial purposes are perfectly proper, as are requests made in order to assist the requester in suing the government entity. Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 4. A custodian may not question the reason for a request, see 950 CMR 32.05(5), with the “possible exception of situations where the records custodian is anticipating the withholding of records pursuant to Exemption (n),” the Homelands Security/public safety exception. See SPR Bulletin No. 04-03 (April 1, 2003) (when evaluating a request under exemption (n), custodian may not inquire as to requester’s “identity or motive,” but may “engage[e] the requestor in conversation,” and may consider additional information volunteered by requester following an initial denial); Guide to Mass. Pub. Recs. Law, at 4, 7.

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3. Use of records

The law makes no restrictions on subsequent use of the information provided.  In 2010 the Massachusetts Department of Transitional Assistance warned a records requester that if he publicized information about how much the government had reimbursed stores for food stamps – data that the agency had turned over to the requester – he could face federal fines of up to $1,000, plus up to a year in jail.  The requester did not buckle, and the agency took no further action. See M. Morisy, “Transparency Missing from Government,” CommonWealth, Summer 2011 (July 6, 2011).

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4. Can an individual request records on behalf of a third party or organization?

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B. Whose records are and are not subject to the Act

The act covers records "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 [Legislature] to serve a public purpose." G.L. c. 4, § 7, cl. 26. At state level, this basically means executive branch records – except that the Governor claims to be exempted, as discussed below. At the county and municipal level, it basically means all records, subject to exceptions, are open. The burden lies with the entity to show that the Public Records Law does not apply to it.  Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 5. See also 950 CMR 32.03, definition of "Governmental Entity."

Despite the breadth of agencies to which the Public Records Law applies, nevertheless the statute is strictly construed “to preclude the public disclosure of documents held by entities other than those specifically delineated in the statute.” Harvard Crimson, Inc. v. President and Fellows of Harvard College, 445 Mass. 745, 750, 840 N.E.2d 518, 522 (2006). Records of federal agencies, the state Legislature, and the federal and state courts are not subject to the act.

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1. Executive branch

The Supreme Judicial Court has assumed without discussion that the Public Records Law applies to chief executives of a governmental unit, such as a mayor or district attorney. See, e.g., Attorney General v. Assistant Commissioner of Real Property Dep't of Boston, 380 Mass. 623, 404 N.E.2d 1254 (1980) (applying statute to documents held by mayor’s office); District Attorney for Norfolk v. Flatley, 419 Mass. 507, 646 N.E.2d 1254 (1980) (district attorney’s office).

Nevertheless, Gov. Deval Patrick has asserted, with some success, that as governor he is exempt from the Public Records law, and therefore that he can choose whether and when to follow its mandates.  Perhaps it is not surprising that the Supervisor of Public Records, an employee of the governor’s Secretary of the Commonwealth, has agreed, declaring in response to one persistent reporter, “Governor’s records are not public records subject to disclosure under the Public Records Law.” Letter Ruling SPR11/069 to Colman M. Herman (April 28, 2011). (In an apparent act of noblesse  oblige, the Governor’s Office “responds to requests for records on a case-by-case basis to provide records as it deems appropriate.  As Governor’s records are exempt from disclosure under the law an explanation of redactions is not required.” Id.; see also L. Carroll, “Alice’s Adventures in Wonderland,” quoting H. Dumpty (“When I use a word, it means just what I choose it to mean – neither more nor less.”).)

The dubious claim for a blanket gubernatorial exemption arises out of Lambert v. Executive Director of Judicial Nominating Council, 425 Mass. 406, 409, 681 N.E.2d 285, 288 (1997), in which the Supreme Judicial Court ruled that a completed questionnaire from an applicant for judicial appointment, which was submitted to the governor through the Judicial Nominating Council (JNC), was not a public record.  That ruling, however, appears to rest on three arguments, two of which are particular to the facts of that case. First, the governor established the JNC by executive order to help him select judges, magistrates, and clerks of court. Its “sole purpose is to assist the Governor” and it has “no public function.” As a result, JNC records “are essentially the Governor’s records on judicial appointments.”  Lambert, 425 Mass. at 408-09, 681 N.E.2d at 287-88. Second, the legislature has not “explicitly” listed the Governor as being subject to the Public Records Law. Id., 425 Mass. at 409, 681 N.E.2d at 287. (The Court fails to mention the law’s explicit applicability to “any officer or employee of any … executive office … of the commonwealth,” G.L. c. 4, § 7, cl. (26)). Third, the appointment of judges is a constitutional duty assigned to the governor alone. He has “broad discretion to select the means he will use in executing a constitutional duty” without interference from the legislature, Opinion of the Justices, 368 Mass. 866, 874, 334 N.E.2d 604 (1975), and he, “by his executive order, has determined that he is best able to exercise his constitutional duty if the JNC’s records and deliberations remain confidential.” Lambert, 425 Mass. at 408-10, 681 N.E.2d at 287-88.

The doctrines of executive privilege and deliberative process privilege as to production of documents have not been recognized in Massachusetts. See Babets v. Secretary of Executive Office of Human Services, 403 Mass. at 230, 526 N.E.2d 1261 (1988) (declining to create a “governmental” or “executive” privilege); District Attorney for Norfolk v. Flatley, 419 Mass. 507, 646 N.E.2d 127 (1995). But see G.L. c. 4, §  7, cl. 26(d), exempting "inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency." This exemption ends where the deliberative process is complete and the policy decided upon. Thereafter, the documents upon which it was based become public. Babets, supra, 403 Mass. 237, note 8.

A public official may not simply claim that records were created in his or her personal capacity if their creation was made possible by virtue of the public he or she holds. See Cape Cod Times v. Sheriff of Barnstable County, 443 Mass. 587, 823 N.E.2d 375 (2005) (holding that records created by reserve deputy sheriffs appointed by the Sheriff of Barnstable County are public).

Records of all executive functions are subject to the Public Records Law, except that – as discussed above – there is some question as to the law’s applicability to the Governor’s office, and in particular to records reflecting the Governor’s performance of his constitutional duties.  See Lambert v. Executive Director of Judicial Nominating Council, 425 Mass. 406, 681 N.E.2d 285 (1997); Letter Ruling SPR11/069 to Colman M. Herman (April 28, 2011) (declaring governor’s records to be exempt).

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2. Legislative bodies

Records of the Legislature are exempt. G.L. c. 66, § 18; Westinghouse Broadcasting Co. v. Sergeant-At-Arms of Gen. Court of Mass., 375 Mass. 179, 184, 375 N.E.2d 1205 (1978) (telephone billing records of Legislature not “public records” subject to disclosure, because Legislature is not “agency, executive office, department, board, commission, bureau, division or authority of Commonwealth). “Massachusetts, the birthplace of American democracy, is one of fewer than 20 states with virtually no requirements that legislators discuss government business in public,” the Boston Globe noted after the Legislature passed a $30.6 billion budget that had been negotiated “almost entirely in secret, with six lawmakers meeting for 24 days of talks that were off limits to taxpayers.  Debates, agendas, and even the times and locations of the meetings were held in strict confidence.  No minutes were kept.” N. Bierman, “Legislators’ Vital Work Veiled from Public’s Eye,” Boston Globe (July 8, 2011).  The article said “[i]nformation blackouts are treated with an almost religious reverence” by legislators, who declined to discuss their deliberations “out of what they term ‘a respect for the process.’”  Id.

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3. Courts

The definition of "public records" does not include court records. See G.L. c. 4, § 7, cl. 26; 950 CMR 32.03; Ottaway Newspapers Inc. v. Appeals Court, 372 Mass. 539, 546, 362 N.E.2d 1189 (1977); Peckham v. Boston Herald, Inc., 48 Mass. App. Ct. 282, 286 n.6, 719 N.E,2d 888, 892 n.6 (1999). See also Kettenbach v. Board of Bar Overseers, 448 Mass. 1019, 863 N.E.2d 36 (2007) (Board of Bar Overseers and Bar Counsel, as members of the judicial branch of government, are not subject to the public records law and thus not obligated to produce documents relating to a former judge’s status as a member of the bar).  When a court document is a public record, access shall be given to all the public, and not be limited to attorneys.  Trial Court Admin. Directive No. 2-93, “Public Access to Court Records of Criminal Proceedings” (April 27, 1993).

Whether a document may be sought by subpoena or discovery request is unaffected by the document’s status as a public record. Town Crier, Inc. v. Chief of Police of Weston, 361 Mass. 682, 691, 282 N.E.2d 379, 385 (1972); Sheriff of Bristol Cty. v. Labor Rels. Comm’n, 62 Mass. App. Ct. 665, 671, 818 N.E.2d 1091, 1095-1096 (2004); see also Republican Co. v. Appeals Court, 442 Mass. 218, 223 n.9, 812 N.E.2d 887, 893  n.9 (2004) (Public Records Law exception for investigatory materials is irrelevant to public right of access to materials submitted to court in support of petition for search warrant).  Once documents are received by an agency during litigation discovery, however, they will be subject to disclosure pursuant to the Public Records Law in response to a proper request, unless the documents had been produced subject to a protective order limiting third-party access. Cf. Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 214, 944 N.E.2d 1019, 1023 (2011) (construing Public Records Law so as not to “invalidate an otherwise providently entered protective order,” in order to avoid raising “serious constitutional questions” about the law’s validity).  (Independent of the Public Records Law, the requesting party may also seek permissive intervention in the litigation to challenge an overbroad protective order.  Id.)

Some specific statutes limit public access to particular court documents, such as adoption records (G.L. c. 210, § 5C); others allow the sealing of criminal records (G.L. c. 276, §§ 100A, 100B, 100C) or prohibit access to the indices of criminal court dockets (G.L. c. 6, § 172). See generally Massachusetts District Court Dep’t of the Trial Court, “A Guide to Public Access, Sealing & Expungement of District Court Records” (Admin. Office of the District Court, rev. April 2010).  A constitutional separation of powers issue as to legislative authority over court records is probably not fully settled. See majority and dissenting opinions in New Bedford Standard-Times Publishing Co. v. Clerk of Third District Court, 377 Mass. 404, 387 N.E.2d 110 (1979); see also First Justice of the Bristol Div. of Juvenile Court Dep't v. Clerk-Magistrate, 438 Mass. 387, 780 N.E. 2d 908 (2003).

Despite the lack of statutory support, almost all state court records are open either as the result of tradition or of recent First Amendment litigation. See Commonwealth v. Doe, 420 Mass. 142, 648 N.E.2d 1255 (1995) (sealing of court record of criminal defendant should occur only in exceptional cases); Globe Newspaper Co. v. Pokaski, 868 F.2d 497 (1st Cir. 1989) (invalidating Massachusetts statute imposing blanket restriction on access to records of criminal cases ending in finding of not guilty or no probable cause); In re Globe Newspaper Co., 920 F.2d 88 (1st Cir. 1990) (finding constitutional right of access to jury list after completion of criminal trial); Globe Newspaper Co. v Fenton, 819 F. Supp. 89 (D. Mass. 1993) (declaring Massachusetts statutory and administrative restrictions on access to court-maintained alphabetical indexes of closed criminal cases unconstitutional); see also Trial Court Admin. Directive No. 2-93 (April 27, 1993) (post-Fenton rule governing access procedures to criminal records).

Court administrative records, like case records, are not covered by the Public Records Law.  Clerk-magistrates presented with a request for access are instructed to seek guidance from legal counsel in the court’s administrative offices.  Access is determined on a case-by-case basis, and documents that fit an exception to the Public Records Law will normally be equally unavailable from the administrative departments of the courts.  See Massachusetts District Court Department of the Trial Court, “A Guide to Public Access, Sealing & Expungement of District Court Records” (Admin. Office of the Trial Court, rev. April 2010), at 30-31.  In particular, the following will normally be off limits: personnel matters, documents whose disclosure would be an unwarranted invasion of personal privacy (but not including employee names, job classifications, salaries, and time and attendance calendars), home addresses and related information of employees, victims, and their families; internal policy memoranda; personal notes; bids; and investigatory materials.  Id. (noting, however, that Public Records Law exceptions “are applied only analogously to judicial branch records,” and that “[t]he absence of a directly-relevant statutory exception is not finally determinative as to whether a particular court administrative record should be made available to the public”).

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4. Nongovernmental bodies

As a general rule, nongovernmental bodies are not covered by the general public records statute, and receipt of public funds or benefits does not normally make otherwise private institutions public. See Bello v. South Shore Hospital, 384 Mass. 770, 775, 429 N.E.2d 1011 (1981).  See also Harvard Crimson, Inc. v. President and Fellows of Harvard College, 445 Mass. 745, 749, 840 N.E.2d 518, 522 (2006) (private university’s police department not subject to Public Records Act, even though, by statute, certain of its officers have been appointed special State police officers, and others are county deputy sheriffs).

Nevertheless, when a governmental body outsources the provision of certain governmental services to private third parties, “[a]ll records created in fulfillment of the obligations of the contract are government records,” and such records must be made available to the public even when they are in the hands of the third-party vendor. SPR Bulletin No. 3-93, “Requirement to Manage Records Created Under Government Contracts (Dec. 23, 1993). Such records may include “information about vendor qualifications, financial records relating to contracts and payment, reports to the contracting government entity, and information about programs and their constituents,” as well as records “required for contract monitoring, litigation, the prevention of fraud and abuse, and the fulfillment of obligations to citizens served by programs.” Id.   . “Records resulting from contracted activities are vital to the conduct of government functions” and are “critical to ensuring accountability.” Therefore they fall within the scope of the Public Records Law, regardless of where they are created and stored. Just as such records, when kept in government offices, are “routinely accessible to citizens,” the Supervisor of Public Records has advised that the same standard applies when “such records are created and stored in contractors’ offices.” Id. “This change in location does not abrogate the government’s obligation to ensure public accountability and public access to those government records,” the Supervisor has stated.  Id.  (Relying on this principle the Supervisor in 2009 required the Town of Watertown to provide names, addresses, and amounts owed by town’s top 10 parking scofflaws.)  Government entities entering into contracts for third-party services must include provisions – at least as broad as those contained in the Public Records Law -- “describing the creation, security, accessibility, disposition, and custody” of those records, and no such records may be destroyed without authorization.  Id.

The records of such groups are probably not covered. The basic test is whether or not the board, committee or other group is itself governmentally appointed, and not whether some of its members may otherwise be government officials.  See, e.g., Harvard Crimson, Inc. v. President and Fellows of Harvard College, 445 Mass. 745, 749, 840 N.E.2d 518, 522 (2006) (private university’s police department not subject to Public Records Act, even though, by statute, certain of its officers have been appointed special State police officers, and others are county deputy sheriffs).

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5. Multi-state or regional bodies

The statute does cover regional bodies. The status of multi-state bodies (rare in Massachusetts) is unclear.

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6. Advisory boards and commissions, quasi-governmental entities

There are some 42 quasi-governmental entities in Massachusetts, ranging in size from six to 6,000 employees, according to the Massachusetts Public Interest Research Group.  MassPIRG Education Fund, Out of the Shadows: Massachusetts Quasi-Public Agencies and the Need for Government Transparency (Spring 2010).  Yet these bodies’ status under the Public Records Law remains murky at best.  MassPIRG reports that although most responded to its formal inquiries for information, others, such as the Commonwealth Zoo Corporation, claimed they were not subject to the Public Records Law – and still others, such as the Steamship Authority, ignored the requests altogether.  Id. at 18-19.

See Lambert v. Executive Director of the Judicial Nominating Council, 425 Mass. 406, 409, 681 N.E.2d 285 (1997) (records of judicial nominating council not “public records” subject to disclosure, because council is a creature of the Governor, who is not explicitly an “agency, executive office, department, board, commission, bureau, division or authority of Commonwealth pursuant to Public Records Law); Globe Newspaper Co. v. Massachusetts Bay Transp. Authority Retirement Board, 416 Mass. 1007, 622 N.E.2d 265 (1993) (public agency retirement board created through collective bargaining agreement not a “board” of the Commonwealth and not subject to Public Records Law); Wallerstein v. Board of Bar Examiners, 414 Mass. 1008, 610 N.E.2d 891 (1993) (Board of Bar Examiners not required to disclose applicant's score on bar exam).  See also Kettenbach v. Board of Bar Overseers, 448 Mass. 1019, 863 N.E.2d 36 (2007) (Board of Bar Overseers and Bar Counsel, as members of the judicial branch of government, are not subject to the public records law and not obligated to produce documents relating to a former judge’s status as a member of the bar).

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7. Others

A private university’s police department is required (not by the Public Records Law but by G.L. c. 41, § 98F) to “make, keep and maintain a daily log … recording … all responses to valid complaints received, crimes reported, the names [and] addresses of persons arrested and the charges against such persons arrested,” and those logs shall be deemed public records.  Id., 445 Mass. at 754, 840 N.E.2d at 525 (2006).  That obligation adheres even though such a private police department is not a governmental entity under the law.  Harvard Crimson, Inc. v. President and Fellows of Harvard College, 445 Mass. 745, 749, 840 N.E.2d 518, 522 (2006).

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C. What records are and are not subject to the act?

“The primary purpose of G.L. c. 66, § 10, is to give the public broad access to government documents. … To that end, disclosure is favored by a ‘presumption that the record sought is public.’”  Harvard Crimson, Inc. v. President and Fellows of Harvard College, 445 Mass. 745, 749, 840 N.E.2d 518, 522 (2006), quoting G.L. c. 66, § 10(c).

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1. What kinds of records are covered?

All records in the agency's custody when the request is received, whether or not required to be kept. G.L. c. 4, § 7, cl. 26; 950 CMR 32.03; see also 32 Op. Att’y Gen. 157, 165 (May 18, 1977) (custodian not obliged to create a record in response to request for information).  “Public records are broadly defined and include all documentary materials made or receive by an officer or employee of any corporation or public entity of the Commonwealth,” unless exempted.  Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609, 614, 609 N.E.2d 460, 463 (1993).

“A custodian may withhold exempt information within a record but must disclose any public portions. … Segregation may be accomplished by blocking out exempt information on a copy of the record, or through electronic segregation prior to disclosure.” Supervisor of Public Records (SPR) Bulletin No. 4-96, Fees for Access and Copying of Computer Records (June 7, 1996).

Occasionally the argument will be made that documents possessed by a government agency were created in a private, individual capacity, and therefore are not public records. Where the documents in question relate to the business of the agency, however, the argument is likely to be an uphill battle at best.  See, e.g., Cape Cod Times v. Sheriff of Barnstable County, 443 Mass. 587 (2005) (requiring sheriff to provide list of reserve deputies he appointed, despite his assertion that the reserves had no substantial public function).

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2. What physical form of records are covered

Statute and regulations cover "all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics." G.L. c. 4, § 7, cl. 26; 950 CMR 32.03. This language clearly includes photographs, tapes, and computerized records, as well as traditional books, papers, and maps. All e-mail created or received by an employee of a government unit is a public record. SPR Bulletin No. 1-99 (Feb. 16, 1999; revised and reissued May 21, 2003). Also included are “all government records generated, received or maintained electronically, including computer records, electronic mail, video and audiotapes.” Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 4.

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3. Are certain records available for inspection but not copying?

No such limitation. See G.L. c. 66, § 10(a); 950 CMR 32.05(6).

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4. Telephone call logs

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5. Electronic records (e.g., databases, metadata)

The Massachusetts Public Records Law “clearly applies to government records generated, received, or maintained electronically.” SPR Bulletin No. 4-96 (June 7, 1996). A records custodian must furnish “copies of non-exempt portions of computerized information at the cost of reproduction, unless otherwise provided by law.”  Guide to Massachusetts Public Records, Law (Sec’y of State, rev. March 2009), at 27.

There is no statutory public entitlement to online access to Massachusetts government records, although many records are currently available online. Nor is there any general statute requiring or authorizing the keeping of records electronically, although the practice is clearly recognized in specific statutes. See e.g., G.L. c. 66A, § 1 (defines and anticipates use of "automated personal data system"); c. 90, § 30A (limits access to computer terminals under control of Registrar of Motor Vehicles). See also 950 CMR 32.06(b) (sets fees for copies of city and town "street list," computer tapes and mailing labels).

Many state and municipal records are now automated, and in some instances municipal officials feed information directly into state-owned computers (e.g., street lists, voter lists, juror lists). Whether a particular record or type of record is available in tape, computer disc or other automated form is usually most easily discovered by direct inquiry of the custodian. Questions relating to the maintenance and disposal of government records (including electronic records) should be directed to the Records Management Unit of the Massachusetts State Archives.

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a. Can the requester choose a format for receiving records?

Yes, and the custodian must comply if the custodian “is able to provide information in a compatible format or medium.”  SPR Bulletin 3-96, “Application of the Public Records Law to Electronic Records Access” (June 6, 1996) at ¶ 6.  However, because a custodian need not provide information “in a format or medium which is compatible to every requester,” the custodian is not required to comply if the time or reprogramming necessary to accommodate a request in a specific format “is tantamount to creating a document, rather than segregating an existing record.” Id.; SPR Bulletin 4-96 (June 7, 1996). The custodian is only obliged to provide access to existing files, in their existing format, except where segregation is necessary. Guide to Massachusetts Public Records Law (Sec’y of State, rev. March 2009), at 27. “The requester is then responsible for converting the data into the desired format.”  SPR Bulletin 3-96, at ¶ 6.

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b. Can the requester obtain a customized search of computer databases to fit particular needs

The custodian has no obligation to create a record in response to a request, if such a record does not currently exist.  950 CMR 32.05(4); see also SPR Bulletin 3-96, “Application of the Public Records Law to Electronic Records Access” (June 6, 1996) (“Writing a program to manipulate data or combine data from various sources so that the end product is truly a new record is not required, but … is permissible.”). In such a case, however, the custodian “should advise the requester of other available documents or files that could be responsive to the request.” Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 27.

If the custodian chooses to create a new record in response to a request, the custodian may charge a reasonable one-time fee for the necessary programming to create the record, in addition to reproduction fees. Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at ¶¶ 5, 7.  See also SPR Bulletin 4-96, Fees for Access and Copying of Electronic Public Records (June 7, 1996) (“Since the newly created record is not within the statutory definition of ‘public records,’ the Regulations do not apply and the custodian may assess any reasonable fee for such reprogramming to create a document.”); see also 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Once a program is written, however, it becomes part of the agency’s files. The agency may recover only once for the costs of creating such a program; for future requests derived from the same database, only the reproduction (and, if applicable, segregation) costs may be charged.  SPR Bulletin 4-96 at ¶ 7; SPR Bulletin 3-96, “Application of the Public Records Law to Electronic Records Access” (June 6, 1996), at ¶ 2.

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c. Does the existence of information in electronic format affect its openness?

Sometimes.  An electronic database may well contain both public and non-public information, such that, arguably at least, the segregation of the two may take additional time. See Doe v. Registrar of Motor Vehicles, The Appeals Court has bemoaned that "there is a negative public interest in placing the private affairs of so many individuals in computer banks available for public scrutiny," largely because data processing technology allows "the aggregation of pieces of personal information to large central data banks." Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 421-22, 425, 528 N.E.2d 880 (1988). While one might be tempted to deride such dicta as a relic of the pre-electronic era, in fact the public is still sometimes barred from using existing online databases.  For example, a Massachusetts statute limits access to computer terminals of the registrar of motor vehicles to government employees, law enforcement agencies, "insurance companies and their authorized agents and service carriers, . . . and the trial courts or computer manufacturers or data processing consultants under contract with the commonwealth." G.L. c. 90, § 30A. Because state tax information is exempt from the public records law, only the commissioner of revenue may authorize "public access to terminals or other data processing equipment for the purpose of copying, reading, collecting, printing, analyzing or manipulating any data or other information . . . or to authorize the release of the original or copies of tapes, cards, disc files or other methods of electronic storage." G.L. c. 59, § 52C. Wannabe hackers beware: It is a crime to obtain or attempt to obtain "any commercial computer service by false representation, false statement, unauthorized charging the account of another, by installing or tampering with any facilities or equipment or by any other means." G.L. c. 266, § 33A. The statutory definition of "commercial computer service" arguably is broad enough to include government computer programs that are available only for a fee.

Another anachronistic sign: At least as of 2003, state government agencies were required to print out paper copies of emails and, where feasible, file them in accordance with the entity’s paper filing system procedures.  SPR Bulletin 1-99, “Electronic mail” (revised and reissued, May 21, 2003) at ¶¶ 5, 6.

All state executive agencies, as well as all authorities created by the Legislature, must have a written information security program regarding records containing “personal information” (for security breach purposes).  SPR Bulletin 1-08, “Security Breach Protections” (undated, 2008) at ¶ 1. Because the policy should include provisions regarding document retention and destruction, as well as identification and retrieval of documents, it may prove useful to a records requester.

Many municipalities contract with private companies to computerize and maintain their municipal records.  Even if contained in a privately created database, however, the data remain public records.  A municipality “cannot contract away its public records duties.”  SPR Bulletin 3-96, “Application of the Public Records Law to Electronic Records Access” (June 6, 1996).

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d. Online dissemination

Requests for on-line access to records or for a subscription service to certain information do not fall under the Public Records Law, because they are requests for documents not yet created.  A custodian may set the fee for such access.  SPR Bulletin 4-96, at ¶ 6.

Among the agencies providing records online are the following:

Courts

Massachusetts Trial Courts Information Center.  http://www.ma-trialcourts.org/tcic/welcome.jsp Massachusetts appellate courts.  http://www.ma-appellatecourts.org/search.php

Business Data

Corporations.  http://corp.sec.state.ma.us/corp/corpsearch/corpsearchinput.asp Corporate finance statements.  http://corp.sec.state.ma.us/uccfiling/uccSearch/Default.aspx

Licensing and registration

Board of Bar Overseers (attorney discipline records).  http://massbbo.org/bbolookup.php Board of Reg. in Medicine (MD profiles).  http://profiles.massmedboard.org/MA-Physician-Profile-Find-Doctor.asp Division of Prof’l Licensure (licensed professionals).  http://license.reg.state.ma.us/public/licque.asp?color=red Municipal inspection departments, such as:  Boston restaurant inspections:   http://www.cityofboston.gov/isd/health/mfc/court.asp  Cambridge restaurant inspections: http://www2.cambridgema.gov/inspectional/searchinspections.cfm

Political Data

Massachusetts Office of Campaign and Political Finance (campaign finance data).  http://www.efs.cpf.state.ma.us/ Registry of lobbyists.  http://www.sec.state.ma.us/LobbyistWeb/Common/Signin.aspx Massachusetts Budget and Policy Center (state budget data).  http://browser.massbudget.org/Default.aspx Massachusetts Legislature (bill tracker).  http://www.malegislature.gov/Bills/Search

Property records

Massachusetts Registry of Deeds.  http://masslandrecords.com/malr/index.htm Municipal property assessments, such as:  Boston: http://www.cityofboston.gov/assessing/search/ Cambridge: http://www2.cambridgema.gov/fiscalaffairs/PropertySearch.cfm

Public safety

Department of Correction (criminal offender custody and case status). https://www.vinelink.com/vinelink/siteInfoAction.do?siteId=20000 MBTA Transit Police arrest log.  http://www.mbta.com/transitpolice/crimestats/arrestlog/ Sex Offender Registry Board.  http://sorb.chs.state.ma.us/ Municipal crime logs, such as: Boston: http://www.bpdnews.com/ Brookline:  http://blog.brooklinepolice.com/

Other government functions

Massachusetts Abandoned Property Division.  http://www2.cambridgema.gov/fiscalaffairs/PropertySearch.cfm Massachusetts Officer of Geographic Information Systems (online database).  http://maps.massgis.state.ma.us/map_ol/oliver.php Boston Neighborhood Services.  http://www.cityofboston.gov/myneighborhood/

Many of these databases, as well as many useful privately created resources, are collected on a useful, comprehensive site called “Government Center: Boston.com’s Guide to Public Records, Databases, and Useful Information,” available at http://www.boston.com/news/specials/government_center/ .  Also useful is www.publicrecordcenter.com .  A reasonably comprehensive collection of public notices, including government notices, can be found at MyPublicRecords.com.

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6. Email

Electronic mail is a public record subject to the requirements of the Public Records Law. Government agencies have a duty to “effectively manage and control” e-mail as part of the office's record-holding. SPR Bulletin 1-99, “Electronic Mail” (revised and reissued, May 21, 2003). This duty includes establishing a written policy for storing e-mail and retaining e-mails for the prescribed period of time based on content. E-mail should be printed and stored in paper form, but certain types of e-mail may be stored electronically.

A common issue with e-mail records relates to deletion of e-mail. Even if a custodian claims that an e-mail message was deleted, backup copies are often retained, and these records remain subject to discovery regardless of the intent to delete the message. E-mail is considered analogous to paper documents. The Supervisor of Public Records, however, has noted that there are differences between the two. Namely, the contextual data that accompanies an e-mail (the mailing address, date/time stamp, routing instructions, transmission and receipt information) is considered an integral part of the record and must be retained in any printed or stored version. SPR Bulletin 1-99 (2003).

Email constitutes a record.  The Public Records Law “applies to all government records generated, received or maintained electronically, including computer records, electronic mail, video and audiotapes.” Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 4.; see also SPR Bulletin 1-99 (revised and reissued, May 21, 2003) at ¶ 3.  The envelope information (mailing address, date and time stamp, routing instructions, and transmission and receipt information) “constitutes an integral part of the record,” and presumably must be disclosed under the Public Records Law along with the contents of the email. See SPR Bulletin 1-99, at ¶ 5.

“Email systems in use in government offices are government property installed and maintained for the conduct of government business”; agencies “may and should” exercise control over it and have the right to monitor and read employee email.  SPR Bulletin 1-99, at ¶ 7.

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7. Text messages and other electronic messages

Text messages and other electronic messages constitute a record. “Public record” is “broadly defined to include all documentary materials or data created or received by any officer or employee of any governmental unit, regardless of physical form or characteristics.” SPR Bulletin 1-99, “Electronic mail” (revised and reissued May 21, 2003), at ¶ 2 (emphasis added). Moreover the Public Records Law “applies to all government records generated, received or maintained electronically, including computer records, electronic mail, video and audiotapes.” Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 4.  The Supervisor of Public Records has defined email as “any message created on an electronic mail system,” which in turn is defined as “a service that provides facilities for creating messages, transmitting them through a network and displaying them on a recipient’s computer terminal.” SPR Bulletin 1-99 (2003). Both the general and specific language appear to encompass text messages and instant messages.

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8. Social media posts

Presumably they may be public records if created or received by any officer or employee of any governmental unit.  “Public record” is “broadly defined to include all documentary materials or data created or received by any officer or employee of any governmental unit, regardless of physical form or characteristics.” SPR Bulletin 1-99, “Electronic mail” (revised and reissued May 21, 2003), at ¶ 2 (emphasis added). Moreover the Public Records Law “applies to all government records generated, received or maintained electronically, including computer records, electronic mail, video and audiotapes.” Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 4.  The Supervisor of Public Records has defined email as “any message created on an electronic mail system,” which in turn is defined as “a service that provides facilities for creating messages, transmitting them through a network and displaying them on a recipient’s computer terminal.” SPR Bulletin 1-99 (2003). Both the general and specific language might be construed to encompass social media postings.

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9. Computer software

No. “A custodian is not obligated to provide copies of a computer program,” because such a program is merely “a tool used in the processing of data rather than a ‘record,’ and therefore is not subject to mandatory disclosure.” SPR Bulletin 3-96, “Application of the Public Records Law to Electronic Records Access,” June 6, 1996.

State government offices are required to preserve the metadata associated with any email message, even if the email is printed out, “to ensure the capture and preservation of a complete record.” SPR Bulletin 1-99 (2003), at ¶ 7.

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10. Can a requester ask for the creation or compilation of a new record?

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D. Fee provisions

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1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

The custodian may charge a reasonable fee to recover the costs of complying with a public records request.  G.L. c. 66, § 10(a); 950 CMR 32.06.  No minimum fee may be imposed.  SPR Bulletin No. 4-96 (June 7, 1996). “Citizens should not be required to pay a premium for access to public records, since the ability to inspect the records of government is fundamental in our democracy.”   SPR98/018 (Letter to Town of Billerica, April 21, 1998), citing Globe Newspaper Co. v. Boston Retirement Board, 388 Mass. 427, 436 (1983); Attorney General v. Assistant Comm’r of Real Property Dep’t of Boston, 380 Mass. 623, 625 (1980). A custodian may not deny a public records request on the grounds that the requester had not paid the fee for prior, fulfilled requests. See G. Arbuckle, “State Orders Rockland Town Administrator to Respond to Public Records Request,” Enterprisenews.com (Oct. 19, 2009).

Except where otherwise provided by statute, fees are not more than 20 cents per page for photocopies of paper records; not more than 25 cents per page for records contained on microfilm or microfiche; and not more than 50 cents per page, plus the “actual cost incurred from the use of the computer time,” for computer printouts. 950 CMR 32.06(1). “The only such ‘actual costs’ which may be recovered are: the cost of the energy consumed during use, the materials used, and the prorated salary of the computer operator.”  SPR Bulletin 4-96, Fees for Access and Copying of Electronic Public Records (June 7, 1996).

In some instances, statutes prescribe fees for specific types of records. See, e.g., G.L. c. 66, § 10(a) (pertaining to motor vehicle accident reports, fire insurance reports, and other records of police or fire departments); G.L. c. 262, § 38 (copies of Registry of Deeds records).  The records custodian may charge the actual cost of reproduction for a copy of a record “not susceptible to ordinary means of reproduction, such as large computer records or over-sized plans.”  Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 2; 950 CMR 32.06(1)(f).

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2. Particular fee specifications or provisions

For non-computerized records, a pro-rated hourly fee may be added for search and segregation time (defined below).  The fee must be based on the hourly rate of the lowest-paid public employee capable of performing the search and segregation (normally the lowest-paid employee in the agency). 950 CMR 32.06(l)(c); see also I.D.2(d), below. For a search of computerized records, the actual cost incurred from the use of computer time may be charged. 950 CMR 32.06(l)(e).  “Search time” means the time needed to locate, pull from the files, copy, and reshelve or refile a public record. 950 CMR 32.03.  “Segregation time” means the time taken “to delete or expurgate data which is exempt,” from the data which is not exempt; the regulations describe “segregation time” as pertaining only to production of paper records.  Id.

As to both search and segregation, the fee may not not include time expended to create the original records (unless the custodian is voluntarily creating a record in response to the request, in which case a reasonable one-time fee may be assessed, see III.B, below) or to organize files; a records custodian has an independent, affirmative obligation to maintain records in an orderly fashion.  Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 3.  The Supervisor of Public Records has enforced that rule, prohibiting one town from imposing a search fee when the search could have been conducted by the requester himself, but for the fact that the requested records are kept in a storage bin without any filing system.  SPR98/018 (Letter to Town of Billerica, April 21, 1998) (“If you deem it necessary that a staff person be in attendance during [the requester’s] search, that is your choice.  However, you may not pass that cost on to the requester … You cannot charge the requester for your own poor filing system.”).

Custodian is not required to produce more than one copy. 950 CMR 32.05(6). Otherwise, except where provided otherwise by statute, fees are not more than 20 cents per page for photocopies of paper records, 950 CMR 32.06(1); not more than 50 cents per page for computer printouts, 950 CMR 32.06(l)(d); and not more than 25 cents per page for microfilm or microfiche, 950 CMR 32.06(l)(b).  For non-print audio or audio-visual records, there are no specific fee provisions. However, regulations do provide that, for copies of public records not susceptible to ordinary means of reproduction, such as photographs or computer tapes, actual cost of reproduction may be charged. 950 CMR 32.06(l)(f).  Additionally, the records custodian may charge for the time spent in reproduction of the responsive record, based on the pro-rated hourly rate of the lowest-paid employee within that department.  Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at p. 8.

In calculating the hourly fee to be charged for search and segregation time, not only must the agency use the hourly rate of the lowest-paid public employee capable of performing the search or segregation, 950 CMR 32.06(1)(c), but the Secretary of State has said that employee, presumptively, will be the lowest-paid employee in the agency.  “[E]xcept where exceptional circumstances are present, it is expected that the lowest hourly rate [of any agency employee] will be used to calculate search and segregation time.” Where the lowest-paid employee lacks the necessary knowledge or experience to segregate exempt from non-exempt information, the necessary guidance should be provided to that employee.  Only “[i]n very complex or difficult cases” may a higher rate be used, that being the hourly rate of the lowest paid employee “who has the necessary knowledge or experience.”  Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at p. 8. Indeed, in some cases, it may be that the requester is capable of conducting the search herself, in which case no search fee may be charged. SPR98/018 (Letter to Town of Billerica, April 21, 1998).

If a requester does not request a copy of the materials, but rather wants only to review them in the office of the record custodian, then the custodian may still charge a fee for search and redaction time.  According to Secretary of State guidelines, “Access to records viewed in this manner should not be denied and only minor fees associated with securing the record should be charged.”  Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 3.

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3. Provisions for fee waivers

Regulations "encourage" the custodian, unless otherwise required by law, to waive fees "where disclosure would benefit the public interest." 950 CMR 32.06(5). The Secretary of State’s public guidelines go even further; they says that “[i]n the interest of open government, all records custodians are strongly urged” to waive fees generally, and that public records “that are of great interest to a large number of people must be readily available … and should be provided at a minimum cost, if any.” Such records include meeting minutes (as to which fee waiver is “strongly encouraged”), town meeting documents, warrants, street lists, and municipal financial documents. Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 3. Nonetheless, it is not within the Supervisor of Public Records' enumerated powers to require such a waiver. See G.L. c. 66, § 10(b); Supervisor of Public Records decision SPR04/117 (June 29, 2004).

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4. Requirements or prohibitions regarding advance payment

If the fee is likely to exceed $10, the records custodian must provide a detailed, written, good faith estimate of the expected fee, including a statement that the actual cost may vary. 950 CMR 32.06(2); SPR Bulletin No. 4-96 (June 7, 1996); Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 3. A custodian may not deny a public records request on the grounds that the requester had not paid the fee for prior, fulfilled requests. See G. Arbuckle, “State Orders Rockland Town Administrator to Respond to Public Records Request,” Enterprisenews.com (Oct. 19, 2009). But the custodian may, and often does, require payment of the fee before complying with a public records request. SPR Bulletin 4-96 (June 7, 1996); see also 950 CMR 32.05(6).

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5. Have agencies imposed prohibitive fees to discourage requesters?

Despite the clarity of the regulations limiting photocopy fees to 20 cents per page, it took an enterprising reporter’s appeal to the Supervisor of Public Records to get the Boston city clerk to end her long-standing practice of charging 50 cents per page. The clerk reportedly told the Secretary of State’s office that she did not realize that state regulations trump city ordinances.  C. Herman, “Boston Writer Fights City Hall and Wins,” New England First Amendment Center (Oct. 23, 2010).

There have been increasing instances of agencies imposing prohibitively high fees for search, segregation, and reproduction of public records.  One blogger with a particularly broad request was told that it would cost him more than $200,000 to obtain records about his city’s parking tickets and responses to citizen complaints. The Boston Globe was told it would have to pay $30,000 to obtain emails of six city officials. An investigative reporter was given a $6,600 estimate for the cost of finding, reviewing, and photocopying the emails of several senior officials of a large state agency.  See M. Rezendes, “High costs can make open records seem closed,” The Boston Globe, Sept. 24, 2009. A frequent stratagem has been an agency’s attempt to charge the requester for the attorney fees incurred by the agency in order to have documents reviewed by legal counsel before they are produced. Additionally, many agencies appear unaware of the Public Records Law’s presumption that search and segregation fees should not exceed the pro-rated hourly fee of the lowest-paid employee in the custodian’s department.

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6. Fees for electronic records

Except where otherwise provided by statute, fees are not more than 50 cents per page for computer printouts, plus the “actual cost incurred from the use of the computer time.” 950 CMR 32.06(1). However, “[t]he only such ‘actual costs’ which may be recovered are: the cost of the energy consumed during use, the materials used, and the prorated salary of the computer operator.”  SPR Bulletin 4-96, Fees for Access and Copying of Electronic Public Records (June 7, 1996). The custodian is required to develop a program for segregating responsive electronic data from exempt data, and, again, only actual costs may be charged.  SPR Bulletin 4-96, at 2. In any event, the fee may not include costs expended to develop the database, input data, create the original records (unless the custodian is voluntarily creating a record in response to the request, see III.B, above) or organize files; because a records custodian has an independent, affirmative obligation to maintain records in an orderly fashion, those costs cannot be passed along to a requester.  SPR Bulletin 4-96 (June 7, 1996); Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 3.

In some instances, statutes prescribe fees for specific types of records. See, e.g., G.L. c. 66, § 10(a) (pertaining to motor vehicle accident reports, fire insurance reports, and other records of police or fire departments); G.L. c. 262, § 38 (copies of Registry of Deeds records).  The records custodian may charge the actual cost of reproduction (as defined below) for a copy of a record “not susceptible to ordinary means of reproduction, such as large computer records….”  Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 2; 950 CMR 32.06(1)(f).

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E. Who enforces the Act?

The Supervisor of Public Records may order a custodian to comply with a person's request or to reduce its fee, but the Supervisor has no enforcement power. If the custodian refuses to comply, all the Supervisor can do is issue a public opinion and notify the Attorney General or appropriate District Attorney. G.L. c. 66, § 10(b), 950 CMR 32.09. Alternatively, if the requester chooses to take the time and expense of going to court, and if the requester prevails, then the Superior Court or Supreme Judicial Court can order compliance. G.L. c. 66, § 10(b). But the prevailing plaintiff will not be able to recover attorney fees or sanctions.

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1. Attorney General's role

The Supervisor of Public Records may notify the Attorney General of a case of noncompliance. G.L. c. 66, § 10(b), 950 CMR 32.09. However, the Attorney General has no obligation to act. Rather, the office decides on a case-by-case basis whether to take action and, if it does, what measures it deems necessary to ensure compliance. The Attorney General does not have authority to request oversight of a public records request.

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2. Availability of an ombudsman

The Supervisor of Public Records, an administrative official in the Division of Public Records, which in turn is located within the office of the Secretary of the Commonwealth, is empowered to rule on the public status of government records held by entities subject to the act. That division generally has an attorney assigned each day to respond to inquiries from the public. To speak to the “Attorney of the Day,” call (617) 828-2832 between 9:00 a.m. and 4:00 p.m. on business days. The office generally declines to provide advisory opinions.

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3. Commission or agency enforcement

Division of Public Records and Supervisor of Public Records.

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F. Are there sanctions for noncompliance?

There are no sanctions in the law.

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G. Record-holder obligations

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1. Search obligations

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2. Proactive disclosure requirements

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3. Records retention requirements

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4. Provisions for broad, vague, or burdensome requests

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A. Exemptions in the open records statute

A record in public control is presumed to be public and within the Public Records Act. G.L. c. 66, § 10(c); 950 C.M.R. 32.08(4); Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 382-83, 764 N.E.2d 847, 852 (2002). Statutory exemptions are to be strictly and narrowly construed. Attorney General v. Assistant Comm’r of the Real Property Dep’t of Boston, 380 Mass. 623, 625 (1980); Attorney General v. Board of Assessors of Woburn, 375 Mass. 430, 432 (1978). The Secretary of the Commonwealth has stated that the custodian has the burden of showing not only that an exemption applies, but also why the record should be withheld. Guide to Mass. Pub. Rec. Law (rev. March 2009), at p. 1; see also G.L. c. 66, § 10(c) District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian must offer specific proof that the documents sought are of a type to which an exemption applies).  If an exemption permits withholding of part of a requested government document, still the non-exempt part of the document must be produced once the exempt portions are redacted out – even if the exempt and non-exempt portions are “intertwined.”  Id. at 8; G.L. c. 66, § 10(a); SPR Bulletin No. 4-96, “Fees for Access and Copying of Electronic Records” (June 7, 1996) (“custodian may withhold exempt information within a record but must disclose any public portions”; “[s]egregation may be accomplished by blocking out exempt information on a copy of the record, or through electronic segregation prior to disclosure”); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (exemptions are not blanket in nature).  “After a redaction takes place, [the custodian] must explain in writing to the requester what information was redacted and the specific reasons why the record was sanitized.  The remaining portions of the record must then be released.”  SPR Bulletin 3-03, Public Record Requests and C.O.R.I. (Nov. 21, 2003) (noting that witness and victim’s names and addresses may be selectively redacted from police records).

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1. Character of exemptions

Theoretically specific, although most exemptions have some play in their joints; whether an exemption applies will frequently depend on the outcome of a balancing test or judgment call.  For example, the privacy exemption (c) requires a weighing of the privacy and public interests; the investigatory exemption (f) applies only when disclosure would prejudice effective law enforcement; the Homeland Security exemption (n) depends on the custodian’s reasonable judgment of the likely jeopardy to public safety; etc. “Given the statutory presumption in favor of disclosure, exemptions must be strictly construed.”  Attorney Gen’l v. Assistant Comm’r of Real Property Dep’t, 380 Mass. 623, 625, 404 N.E.2d 1254, 1256 (1980); Attorney Gen’l v. Assessors of Woburn, -- Mass. --, 378 N.E.2d 45 (1978).

A 2009 publication from the Secretary of the Commonwealth describes all exemptions generally as being “discretionary to the records custodian” (Guide to Mass. Pub. Records Law (Sec’y of Comm., revised March 2009), “Frequently Asked Questions” at p. 1), and the Supreme Judicial Court has assumed the same.  See Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 442 n. 24 (1983). Certainly that  would seem correct with respect to documents that are exempted under the public records law but not subject to a separate confidentiality statute. See, e.g., Westinghouse Broad. Co. v. Sergeant-at-Arms of General Court, 375 Mass. 179, 185 n.9, 375 N.E.2d 1205 (1978). Town Crier Inc. v. Chief of Police of Weston, 361 Mass. 682, 691-692, 282 N.E.2d 379 (1972). Where there is a separate confidentiality statute, that statute’s mandate of non-disclosure will likely control. See, e.g., "personal data" on government employees and others maintained by government agencies (G.L. c. 66A); reports of rape or sexual assault (G.L. c. 41, § 97D); hospital records on individual patients (G.L. c. 111, § 70).

There has been some suggestion that, at least with respect to the personnel exemption, the statute should be viewed as prohibiting disclosure altogether, even in the absence of other statutory authority. See Wakefield Teachers Ass'n, 431 Mass. at 802-03 (declaring that personnel files are “absolutely exempt from disclosure,” whereas the Boston Retirement Board case used the formulation, “absolutely exempt from mandatory disclosure”). So far, however, that argument has gained no traction. See, e.g., Geier v. Town of Barre, No. 070171C, 2009 WL 323370 (Mass. Super. Jan. 9, 2009) (declining to read Wakefield Teachers Ass'n. as implicitly recognizing a private right of action for municipal employee to recover damages for a town’s discretionary disclosure of her personnel files). See also Pottle v. School Comm. of Braintree, 395 Mass. 861, 862 n. 3; (1985); General Chem. v. Dept. of Envt'l. Quality, 19 Mass.App.Ct. 287, 291 n. 3 (1985).

The Massachusetts Public Records Law is patterned after the federal Freedom of Information Act "in a general way." Globe Newspaper Co. v. Boston Retirement Board, 388 Mass. 427, 433 n.11, 446 N.E.2d 1051, 1055, n.11. (holding that, due to differences in the punctuation of the Massachusetts and federal statutes, municipal employee medical files, unlike their federal analogs, are absolutely exempt from disclosure). See also Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 156, 385 N.E.2d 505, 508 (1979) (holding that balancing process required under the state privacy exemption (exemption (c)) parallels the privacy exemption under FOIA); see also Attorney Gen. v. Assistant Comm’r of Real Property Dep’t, 380 Mass. 623, 625-26 n.2, 404 N.E. 2d 1254, 1256 n.2 (1980).

One important difference is the omission of the federal exemption for litigation strategy and privileged materials contained in the Massachusetts law; another is the narrower exemption under Massachusetts law for personnel rules and policies.  The differences between the state statute and the previously enacted federal statutes permit an inference that the Massachusetts law rejects, narrows, or expands the legal principles embodied in FOIA.  Globe Newspaper Co. v. Boston Retirement Board, 388 Mass. 427, 432-33 (1983).

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2. Discussion of each exemption

The general statute defining "public records" (G.L. c. 4, § 7, cl. 26) contains limited exemptions for those parts of books, papers, photographs, tapes, electronic information and other documents that fall within the categories listed below.  The full wording of the statutory exemption is quoted; the “titles” for each of the exemptions have been added by this outline’s author, for the reader’s convenience.

(a) Statutory exemptions: “specifically or by necessary implication exempted from disclosure by statute.”  See Attorney General v. Collector of Lynn, 377 Mass. 151, 154 (1979) (records of municipal tax delinquents not exempt from disclosure); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977) (confidential bank examination report exempt from disclosure). The exemption contemplates two kinds of statutes.  The first kind, statutes that specifically exempt records from disclosure, are those that say a record shall be kept confidential, shall not be a public record, or shall not be subject to the Public Records Law.  See, for example, G.L. c. 41, § 97D (reports of rape or sexual assault “shall not be public reports”).  The second kind, statutes that provide an exemption by necessary implication, are those that expressly limit dissemination of records to a defined group of individuals or entities.  See, for example, G.L. c. 6, § 172 (“Criminal offender record information … shall only be disseminated to: criminal justice agencies…”). A list of some of the statutory exemptions that exist under Massachusetts law is provided below at II.B.

(b) Personnel rules and practices (if necessary): “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 government functions requires such withholding.”  A custodian relying on exemption (b) must show both that records relate solely to the entity’s internal personnel practices, but also that proper performance of necessary government functions would be inhibited by disclosure.  Like the cognate federal exemption, exemption (b) is designed to relieve agencies of the burden of maintaining, assembling, and disseminating records “in which the public cannot reasonably be expected to have a legitimate interest.”  Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), p. 10.  The state exemption is narrower than the federal one, by virtue of the addition of the “proper performance” clause.  Id.

(c) Privacy (sometimes), personnel (often), and medical:  “personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.”  The privacy standard contained in exemption (c) is “more favorable to nondisclosure” than the Massachusetts privacy statute, G.L. c. 214, § 1B, which provides a right only against “unreasonable, substantial or serious interference with ... privacy.” Pottle v. Sch. Comm. of Braintree, 395 Mass. 861, 866, 482 N.E.2d 813, 817 (1985).  It is a complicated exemption, best understood through a process of linguistic dissection.

Under the first clause of exemption (c), “[a]s a general rule, medical information will always be of a sufficiently personal nature to warrant exemption.” Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), p. 11. See Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438, 446 N.E.2d 1051 (1983) (“medical ... files or information are absolutely exempt from mandatory disclosure where the files or information are of a personal nature and relate to a particular individual”); see also Logan v. Commissioner of Dep’t of Industrial Accidents, 68 Mass. App. Ct. 533, 535-36, 863 N.E.2d 559, 562 (Mass. App. Ct. 2007). Even redacted medical records (shorn of names and other data) will be withheld where there is a “grave risk” that individuals familiar with the patient (such as co-workers) could identify the patient and his medical condition.  Id. (“indirect identification”); see also Globe Newspaper Co., 388 Mass. at 438; Wakefield Teachers Assn. v. School Comm. of Wakefield, 431 Mass. 792, 795, 731 N.E.2d 63 (2000).

Whether certain records constitute personnel files or information is a case-specific question, depending on “the nature or character of the documents, as opposed to the documents’ label.”  Id.  Personnel information useful in making individual employment decisions – employment applications, performance evaluations, disciplinary records, documentation regarding promotion, demotion, or termination – will generally be exempt.  But internal affairs records – including officers’ reports, witness interview summaries, and the internal affairs report itself – are not exempt because they relate to the workings of a process designed to ensure public confidence in the government.

As to the second half of exemption (c) (the clause following the semicolon), that half of the exemption only comes into play if disclosure of the materials is an invasion of privacy, which under Massachusetts law means that it would disclose “intimate details” of “a highly personal nature,” see G.L. c. 214, § 1B.  If such an invasion of privacy is at issue, then the analysis proceeds to whether the privacy invasion may be “unwarranted.”  Like the federal privacy exemption, this part of exemption (c) “requires a balancing between the seriousness of any invasion of privacy and the public right to know.”

Despite the Public Records Law’s presumption favoring openness, the “balancing” under the state privacy exemption is weighted toward non-disclosure (perhaps in deference to the exemption’s application whenever the invasion of privacy “may” be unwarranted).  Thus, a record that invades privacy is deemed public only if “the public interest in obtaining information substantially outweighs the seriousness of any invasion of privacy.” Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 156, 385 N.E.2d 505, 508 (1979) (emphasis added); see also Hastings & Sons Pub. Co. v. City Treasurer of Lynn, 374 Mass. 812, 375 N.E.2d 299 (1978); Peckham v. Boston Herald, Inc., 48 Mass. App. Ct. 282, 286 n.6, 719 N.E.2d 888, 892 n.6 (1999).

The analysis relies to some extent on the contours of the Massachusetts privacy law, G.L. c. 214, § 1B.  Compare  Attorney General v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 404 N.E.2d 1254 (1980) (privacy exemption covers mental health condition, legitimacy of children, medical condition, welfare payments, alcohol consumption, HIV status, family fights) with Doe v. Registrar of Motor Vehicles, No. 85-3449, 1993 WL 496590 (Mass. Super. June 8, 1993) (age and height are not “intimate details of a highly personal nature”). But courts have cautioned that whether a privacy interest is implicated in a particular case “requires a somewhat more nuanced examination” in light of the context of the disclosure. Georgiou v. Commissioner of Department of Industrial Accidents, 67 Mass. App. Ct. 428, 434 (2006), quoted in Globe Newspaper Co. v. Executive Office of Admin. and Finance, No. 011-1184 (Suffolk Super. Ct. April 25, 2011).  The factors considered include “whether disclosure would ‘result in personal embarrassment to an individual of normal sensibilities,’ … ; whether the materials sought contain ‘“intimate details” of a “highly personal” nature,’ …; and whether ‘the same information is available from other sources.’” Globe Newspaper Co. v. Police Comm'r of Boston, 419 Mass. 852, 858, 648 N.E.2d 419, 425 (1995) (internal citations omitted).

Thus, for example, the Superior Court denied an accident victim’s request for the names of certain individuals whose testimony would be integral to his recovering insurance benefits, on the grounds that the individuals had come forward on a promise of anonymity.  Pintado v. Nat'l Carpentry Contractors, Inc., No. 073898, 2009 WL 4282102 (Mass. Super. Nov. 6, 2009).  “Generally, names and address of adults are not considered to be intimate details of a highly personal nature,” the Superior Court noted.  But because “the expectations of the data subject are relevant,” such information “might be protected against disclosure as an unwarranted invasion of privacy in one context and not another.” Id.  The balancing of a privacy interest against the public interest in disclosure must be done on a case-by-case basis. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Georgiou, 67 Mass.App.Ct. at 433.

When it comes to records that relate to a public employee's performance of official duties, however, the privacy interest will be particularly muted. See, e.g., George W. Prescott Publishing Co. v. Register of Probate, 395 Mass. 274, 79 N.E.2d 658 (1985) (newspaper successfully sought access to divorce records, including financial statements, of county treasurer).  Under specific circumstances, courts have deemed that individual privacy interests were trumped by the public’s right to know “whether the burden of public expenses is equitably distributed,” “whether public servants are carrying out their duties in an efficient and law-abiding manner,” Attorney Gen. v. Collector of Lynn, 374 Mass. at 158, 385 N.E.2d at 509; the “expenditure of public monies by public officials,” Attorney General v. Assistant Com’r of Real Property Dep’t, 380 Mass. 623, 626, 404 N.E.2d 1243, 1256 (1980); and “what its public servants are paid,” Hastings, supra, 374 Mass. at 818, 375 N.E.2d at 304.

(d) Deliberative process (sometimes):  “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.”  Where it applies, this exemption “protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete.”  Babets v. Secretary of the Exec. Office of Human Services, 403 Mass. 230, 237 n.8, 526 N.E.2d 1261, 1265 n.8 (1988).

(e) Employee’s personal notebooks:  “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.”  This category does not include materials that are created by virtue of an individual’s public office.  See, e.g., Cape Cod Times v. Sheriff of Barnstable County, 443 Mass. 587, 594, 823 N.E.2d 375, 381-82 (2005).

(f) Secret investigatory materials (sometimes): “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.”  Often misused, this provision “does not … create a blanket exemption for all records that investigative officials create or maintain.”  “Guide to the Massachusetts Public Records Law” (Sec’y of State, rev. March 2009) at 15, citing District Attorney for the Norfolk District v. Flatley, 419 Mass. 507, 512 (1995), and WBZ-TV$ v. District Attorney for the Suffolk District, 408 Mass. 595, 603 (1990). Rather, it applies to three kinds of materials.  First, it covers “information relating to an ongoing investigation that could potentially alert suspects to the activities of investigative officials” (applicable only so long as the investigation is ongoing).  “Guide,” at 15. Second, it covers information that would reveal “confidential investigative techniques” the disclosure of which would prejudice future law enforcement efforts (applicable indefinitely).  Bougas v. Chief of Police of Lexington, 371 Mass. 59 62 (1976).  Third, and finally, it requires redaction of information, such as details in witness statements, “which if released create a grave risk of directly or indirectly identifying a private citizen who volunteers as a witness” (applicable indefinitely). Globe Newspaper Co. v. Boston Retirement Board, 388 Mass. 427, 438 (1983) (defining “identifying details” and “grave risk of indirect identification”). In each case, the custodian must demonstrate that there would be a prejudice to investigative efforts.The exemption may be employed “to allow for the redaction of the names and addresses of witnesses and victims or to remove information on the record which if released, will so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” SPR Bulletin 3-03, Public Record Requests and C.O.R.I. (Nov. 21, 2003) (noting, however, that Supervisor of Public Records “will not uphold any claim of an exemption if it is not substantiated by clear evidence”).

(g) Trade secrets voluntarily divulged on promise of confidentiality: “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.”  All six criteria must be met: (1) trade secrets, commercial information, or financial information; (2) provided voluntarily to a government entity; (3) for use in developing government policy; (4) upon an assurance of confidentiality; (5) not as required by law; and (6) not as a condition of a governmental benefit.  It does not apply to information provided in connection with a contract bid or pursuant to a filing requirement.  Guide to Massachusetts Public Records Law (Sec’y of State, rev. March 2009), at 16.

(h) Bids and contract proposals (for a short time):  “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, designed to protect the integrity of the government bidding process, is time-limited. Proposals may be withheld only until the time for receiving proposals has expired.  Bids may be withheld until they are publicly opened and read.  (In other words, the agency may not continue withholding such information until a contract is finalized.)  The second clause of the exemption is similar to exemption (d), in that it allows withholding of communications regarding the evaluation of the bids or proposals while the decision process is ongoing.  These evaluative materials must be disclosed once a decision is reached.  See Guide to Massachusetts Public Records Law (Sec’y of State, rev. March 2009), at 17-18.

(i) Real property appraisals (for a short time): “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.”  Once any one of those three conditions has occurred, the appraisals must be disclosed.  The law defines an “appraisal” as any written analysis, opinion, or conclusion prepared by a real estate appraiser relating to the nature, quality, value or utility of specified interest in, or aspects of, identified real estate.”  G.L. c. 112, § 173. The analysis is parcel-specific; details about one parcel may not be withheld pending final agreement on all parcels involved in a project.  See Coleman v. Boston Redevelopment Authority, 61 Mass. App. Ct. 239 (2004).

(j) Firearms license data: “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 [140] or any firearms identification cards issued pursuant to said Chapter one hundred and forty [140] 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 [140] and the names and addresses on said licenses or cards.” This exemption permits withholding of identifying details, but not the entirety, of any firearm application or identification card. (Other statutory exemptions may permit further redactions, for example, of the holder’s social security number (exemption (c)) or CORI information (exemption (a)). Notably, the Public Records Law contains an independent provision expressly prohibiting the release, by the state or any licensing authority, of information “divulging or tending to divulge” names and addresses of individuals who own, possess, or are licensed to carry firearms.  G.L. c. 66, § 10(d). See also G.L. c. 140, §§ 1210131P (discussing sale of firearms).  Thus, a request for firearm records of a specific individual would be denied in its entirety, as there is no other way to shield the individual’s identity.

(k) [Subparagraph (k) of G.L. c. 4, § 7, cl. 26 has been repealed. See St. 1988, c. 180, § 1. However, the same act added an essentially similar provision to the public library laws providing that "[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." G.L. c. 78, § 7, as amended by St. 1988, c. 180, § 2.  That statutory exemption is incorporated into the Public Records Law by virtue of exemption (a).]

(l) Reusable tests and score sheets: “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.”  Under this exemption, a school may deny a parent’s request for a copy of a midterm exam, if the school establishes that the test questions will be re-used for future examinations.  The same would hold for testing materials used for the statewide Massachusetts Comprehensive Assessment System (MCAS) testing regimen. Guide to the Massachusetts Public Records Law (Sec’y of State, rev. March 2009), at p. 21. The exemption is meant to protect competitively scored, standardized tests and examinations, and does not apply to guidelines used by government agencies to effect policy.  Massachusetts Corr. Legal Services v. Comm'r of Correction, 76 Mass. App. Ct. 1128, 925 N.E.2d 573 (Mass. App. Ct. 2010) (requiring disclosure of unredacted “Risk Factor Tool” used by jails to determine double-bunking of inmates).

(m) Certain hospital contracts: “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 [c. 176] I, a non-profit hospital service corporation or medical service corporation organized pursuant to chapter one hundred and seventy-six [c. 176] A and chapter one hundred and seventy-six [c. 176] B, respectively, a health insurance corporation licensed under chapter one hundred and seventy-five [c. 175] or any legal entity that is self insured and provides health care benefits to its employees.” Withholding is permitted only if all four criteria are met: (1) a contract; (2) for hospital or related health care services; (3) one party being a government-operated medical facility; and (4) the other party being an entity as described in the exemption.

(n) Public Safety/Homeland Security: “records including, but not limited to, blue prints, 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, buildings, structures, facilities, utilities, transportation or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the custodian, subject to review by the supervisor of public records under subsection (b) of section 10 of chapter 66, is likely to jeopardize public safety.” This post-9/11 exemption was enacted even though the Legislature was advised that it requires a records custodian to make a “value judgment” regarding the requester – something that is “specifically antithetic to the … presumptions that all records are public records and all requesters shall be treated uniformly.” Guide to the Massachusetts Public Records Law (Sec’y of State, rev. March 2009), at 22-23. The custodian may communicate with the requester and ask for sufficient information to reach a “reasonable judgment” about the risk to public safety by disclosure, although the requester need not respond.  Id. Under this exemption, it is entirely possible, and permissible, that a custodian might properly provide requested blueprints to one requester, and deny the same blueprints to another.

(o) Home address information of public employees: “the home 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.”  Similar language is repeated in the body of the Public Records Law, see G.L. c. 66, § 10(d).  Note that this exemption does not apply to the employees’ names, only to their home addresses and telephone numbers.

(p) Names and home address information of public employees’ family members: “the name, home 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).”  Similar language is repeated in the body of the Public Records Law, see G.L. c. 66, § 10(d).  Note that this exemption extends to the names of the employees’ family members, and not merely to their home addresses and telephone numbers.

(q) Adoption information: “adoption contact information and indices therefore [sic] of the adoption contact registry established by section 31 of chapter 46.”

(r) Child advocate information: “information and records acquired under chapter 18C by the office of the child advocate.”

(s) Energy supplier’s confidential information (sometimes): “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 of a private entity so licensed.”

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B. Other statutory exclusions

A specific exclusion contained in another statute will override the general public records law. See G.L. c. 4, § 7, cl. 26(a). The following is a partial list of specific statutory references relating to records access. The reader is urged to consult the applicable statute to determine the scope and conditions of the exclusions, if any.

1. Abatement applications. Books recording abatements that have been granted are open to public inspection; applications for abatement or exemption are not. G.L. c. 59, § 60.

2. Address Confidentiality Program, participant applications and supporting documents.  G.L. c. 9A, § 6.

3. Adoption records. Closed unless judge orders otherwise. G.L. c. 210, § 5C.

4. Air pollution control (trade secrets). Other than emission data, upon request, records are not public when they relate to secret processes, methods of manufacture, or trade secrets. G.L. c. 111, § 142B.

5. Alcohol treatment records.  G.L. c. 111B, § 11.

6. Bank examination records. Available only to the commissioner of banks. G.L. c. 167, § 2.

7. Birth reports.  G.L. c. 46, § 4A; G.L. c. 46, § 2A (out-of-wedlock birth records unavailable except by court order).

8. Blind persons, Commission for the Blind Register. Records regarding aid to the blind are not public. G.L. c. 6, § 149.

9. Business schools (private), financial statements. Financial statements used for evaluating renewal applications are not public records. G.L. c. 75D, § 3.

10. Capital facility construction project records. Not available to the public. G.L. c. 30, § 39R.

11. Census records. The requirement for a decennial state census has been repealed. See St. 1992, c. 403, § 2. However, much of the same information is obtainable from the street lists prepared annually by city and town clerks. These list all known inhabitants 17 years of age or older of a given city or town and identify voters. G.L. c. 51, §§ 6-7. This list is also normally available electronically.

12.  Central Registry of Voters.  G.L. c. 51, § 47C.  Office of the Secretary of the Commonwealth is obligated to provide all persons, including statewide committees, with access, upon request, to voter information contained in the central registry under public records law and also to provide statewide committees with access to voters' names and addresses under the central registry statute.  Op.Atty.Gen., Oct. 11, 2001.

13.  Conflict of interest, request for an opinion.  G.L. c. 268A, § 22.

14. Collective bargaining records. Not covered in exceptions to Public Records Law but are normally not available from government employer until an agreement is reached. This result flows from the collective bargaining strategy and negotiation exception in the Open Meeting Law. See G.L. c. 39, §  23B(3).

15. Confidential communications to sexual assault and domestic violence counselors. Privilege includes any written records of such communications. G.L. c. 233, § 20J.

16.  Consumer protection investigations.  Information produced in a consumer protection investigation is not to be disclosed. However, the attorney general may disclose such information in a court pleading.  G.L. c. 93A, § 6(6).

17. Criminal Offender Record Information. G.L. c. 6, § 167.

18.  Delinquency, sealing by commissioner of probation.  G.L. c. 276, § 100B.

19. Department of Social Services, central registry. Information related to individual children is confidential. G.L. c. 119, § 51F.

20. Department of Youth Services. Records of the commitment of a delinquent child or youthful offender are not open to public inspection, but remain open to the child, his/her parents or guardian, and his/her attorney. G.L. c. 120, § 21.

21. Disease and medical treatment records. In addition to the general patient record confidentiality statute and the fact that most Massachusetts hospitals are private institutions, there are further specific provisions for the confidentiality of various particular medical records. Examples include births of children with congenital deformity or birth defects (G.L. c. 111, § 67E), alcoholism treatment (G.L. c. 111B, § 11), treatment of Reyes syndrome (G.L. c. 111, § 110B), registry of malignant diseases (G.L. c. 111, § 111B), infectious disease reports (G.L. c. 111D, § 6), venereal disease treatment (G.L. c. 111, § 119), drug dependency treatment (G.L. c. 111E, § 18(a)), mentally ill persons (G.L. c. 123, § 36), records of tests for genetically linked diseases (G.L. c. 76, § 15B), and records of tests for AIDS (G.L. c. 111, § 70F). Restrictions may not apply to records not identifying individuals. See, e.g., c. 111, § 191 (lead paint poisoning).

22. Drug addiction treatment records.  G.L. c. 111E, §18.

23. Employment agencies. Information related to employment agency licensing violations is confidential. G.L. c. 140 § 46R.

24. Employment security data. Information secured for employment matters pursuant to G.L. c. 151A is confidential and absolutely privileged except in certain court proceedings. Selected information may be available to certain parties, such as the employer, the claimant, the IRS, and the state police. G.L. c. 151A § 46.

25. Environmental impact reports. Largely open. All state agencies, departments, commissions, etc. are required to review and to evaluate the impact on the natural environment of all works, projects or activities conducted by them or by those to whom they issue permits. G.L. c. 30, § 61. All such environmental impact reports are public documents. G.L. c. 30, § 62C.

26. Executive sessions, minutes.  G.L. c. 30A, §11A; G.L. c. 34, § 9F; G.L. c. 39, § 23B.

27. Fetal death reports. Generally confidential. Reports may be released for statistical or research purposes as long as the report does not contain the names of the parents. G.L. c. 111, § 202.

28. Firearms Bureau records. Bureau is not permitted to release names of persons who own, possess, or are licensed to own or possess firearms. G.L. c. 66, § 10(d).

29. Gas and electric affiliated company records. G.L. c. 164, § 85.

30. Genetically linked diseases, testing records. G.L. c. 76, § 15B.

31. Hazardous substances reports. Information provided to state or local agencies or instrumentalities by manufacturers and employers is not a public record. G.L. c. 11F, § 21.

32. Hazardous waste facilities.  Under the Massachusetts Hazardous Waste Management Act, records are confidential if they would divulge a trade secret. G.L. c. 21C, § 12.

33. Hazardous waste management records. Waste disposal site records are confidential when they contain trade secrets, except that they may be reported as aggregate statistics for the environmental impact report. G.L. c. 21D, § 6.

34. Health care services inventory, Department of Public Health. A list of health care resources is maintained by the Commonwealth and is considered a public record. Some items considered confidential or privileged are exempted. G.L. c. 111, § 25A.

35. Historical and archaeological sites and specimen inventory. Not public records. Exception includes discovery and existence of information about Native American burial sites. G.L. c. 9, § 26A(1).

36. Home addresses and telephone numbers of public safety personnel, victims of adjudicated crimes, and persons providing family planning services.  In addition to the enumerated exceptions in this outline, the body of the Public Records Law contains an additional exemption prohibiting government entities from disclosing “[t]he home address and telephone number or place of employment or education of victims of adjudicated crimes, of victims of domestic violence and of persons providing 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.”  Note that, under the language, the names of family members are exempted, but the names of victims are not.  G.L. c. 66, § 10(d).

37. Hospital medical peer review committee. Reports and records are confidential, G.L. c. 111, § 204, but subject to subpoena by appropriate regulatory authorities. Commonwealth v. Choate-Symmes Health Services Inc., 406 Mass. 27, 545 N.E.2d 1167 (1989).

38. Hospital records. Individual patient records are exempt. G.L. c. 111, § 70. Most Massachusetts hospitals are private.

39. Hospitals, reports of staff privilege revocation. Confidential. G.L. c. 111, § 53B.

40. Housing code violations. Now largely open. Complaints, inspection reports, and correspondence pertaining to housing violations are public records. G.L. c. 111, § 127B; Cunningham v. Health Officer of Chelsea, 7 Mass. App. Ct. 861, 385 N.E.2d 1011 (1979).

41. Inspector General investigations. Records from the office are not considered public records. G.L. c. 12A, § 13.

42. 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, § 6(1).

43. Juvenile delinquency court records. G.L. c. 119, § 60A.

44. Lawyer disciplinary records. Normally confidential unless public reprimand, suspension, or disbarment results. Supreme Judicial Court Rule 4:01, §§ 4, 20.

45. Legal opinions of corporate counsel, city solicitor, or town counsel. Opinions rendered are public records and are filed with the city or town clerk. G.L. c. 268A, § 22.

46. Legislature. The Public Records Act does not apply to the Legislature. G.L. c. 66, § 18.

47. Library circulation records. G.L. c. 78, § 7.

48. Malignant disease reports. G.L. c. 111, § 111B.

49. Massachusetts Commission Against Discrimination investigatory files (including position statement). G.L. c. 151B, § 5.

50. Massachusetts Technology Development Corporation, corporate records. Materials consisting of trade secrets or commercial or financial information regarding the operation of any business conducted by an applicant are exempt. However, if the corporation purchases a qualified security from an applicant, the commercial and financial information, excluding trade secrets, will constitute a public record after the sale of the corporation's qualified security. G.L. c. 40G, § 10.

51. 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 by taking other final action." G.L. c. 112, § 5. Access is available to records from the last 10 years of physician malpractice pay-outs and settlements, and certain disciplinary records, as well as physician profile information including education, awards, hospital affiliations, and insurance plans. Physician profile information may be obtained at http://profiles.massmedboard.org/Profiles/MA-Physician-Profile-Find-Doctor.asp or by calling the Massachusetts Board of Registration in Medicine at 617-654-9830.

52. Mental health facilities records. G.L. c. 123, § 36.

53. Motor vehicle insurance merit rating plans. G.L. c. 6, § 183.

54. Native American burial site records. G.L. c. 9, § 26A(5).

55. Natural heritage programs database. G.L. c. 66, § 17D.

56. Patient abuse at intermediate care facilities for mentally retarded citizens, and convalescent, mursing, or rest homes. Reports of abuse by health care workers are exempt. Upon written request, a copy may be obtained by the patient or resident or counsel, the reporting person or agency, the appropriate professional board of registration, or a social worker assigned to the case. G.L. c. 111, § 72I.

57. Patient records confidentiality; medical and mental health facilities.  G.L. c. 111. § 70E.

58. Protective Services records, aged persons. G.L. c. 19A, § 23.

59. Psychotherapist-patient privilege. Includes written communications and records and notes on oral communications. G.L. c. 233, § 20B. Disclosure may be appropriate to protect safety of client or others; also, in legal proceedings at which mental health is a defense, in a case involving custody, or in a case against therapist for malpractice.

60. Public assistance record, aged persons, dependent children, handicapped persons. Deemed public records, but only open to inspection by public officials for purposes connected to administration of public assistance. Identifying information only is also open to the state police. G.L. c. 66, § 17A.

61. Public assistance, Wage Reporting System information. G.L. c. 62E, § 8.

62. Rape reports. Reports of rape and sexual assault are exempt. G.L. c. 41, § 97D.

63.  Security breach reports created pursuant to G.L. c. 93H are subject to the Public Records Law and its exemptions. See SPR Bulletin 1-08, “Security Breach Protections” (undated, 2008).

64. Sex offender registry information. G.L. c. 6, §178I.

65. Social worker-client privilege. Includes records of communications and services of licensed or state social worker. G.L. c. 112, § 135A. Disclosure may be appropriate to protect safety of client or others.

66. Special needs children, evaluations.  The written record and clinical history from the evaluation provided by the school committee and independent evaluation are confidential. G.L. c. 71B, § 3.

67. Street lists, children ages 3-17, court order granting protection. G.L., c. 51, § 4(a), (d).

68. Student records. Open to inspection by parent or guardian. G.L. c. 71, §§ 34D, 34E.

69. Tax returns. Public officials are prohibited from disclosing any state tax information other than the name and address of the person filing the return, except in tax collection or evasion proceedings. G.L. c. 62C, § 21. However, local property tax records are public. G.L. c. 59, § 43.

70. Vocational rehabilitation records. G.L. c. 6, § 84.

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

1. Attorney-client privilege. The Public Records Law does not abrogate the attorney-client privilege. Confidential communications between public officers and employees and governmental entities, on the one hand, and their legal counsel, on the other, “are protected under the rules of the normal attorney-client privilege” when they are “undertaken for the purpose of obtaining legal advice or assistance.” Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. 444, 870 N.E.2d 33 (2007).  Because the privilege is “a matter of common law of fundamental and longstanding importance to the administration of justice,” attorney-client privileged documents may be withheld in response to a public records request, even in the absence of an applicable statutory exemption. Id. (declaring that if Legislature desired for privilege to be trumped by the public records law, “it would have made that intention unmistakably clear”).  A different result, the Court said, would be to “employ the conventions of statutory construction in a mechanistic way that upends common law and fundamentally makes no sense.” Id. at 458.

Nonetheless, for the government to invoke the attorney-client privilege, it must do more than simply assert it; the government has the burden of proving the existence of the privilege, and must produce “detailed indices” justifying its claim that the privilege applies to the withheld documents. Id., 449 Mass. at 450 n.9, 460, 870 N.E.2d at 38 n.9, 45-46.  Whether the Supervisor of Public Records has authority to rule on the applicability of the privilege to public records requests has been the subject of dispute between the Secretary of State’s office, which interprets the statute, and the Attorney General’s Office, which enforces it in court.  See, e.g., C. Herman and B. Mohl, CommonWealth, Winter 2011 (Jan. 18 2011).

2. Attorney work product. The result is different, however, as to the work product privilege; “materials privileged as work product pursuant to Mass. R. Civ. P. 26(b)(3) … are not protected from disclosure under the public records statute unless those materials fall within the scope of an express statutory exemption.” General Electric Co. v. Department of Environmental Protection, 429 Mass. 798, 801, 711 N.E.2d 589, 592 (1999). The differing treatment of the attorney-client and work product privileges results from the different scope of the two protections. Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. 444, 456, 870 N.E.2d 33, 43 (2007) (noting that attorney-client privilege “has deep roots in the common law and is firmly established as a critical component of the rule of law in our democratic society,” while the work product doctrine is a “tool of judicial administration, … not having an intrinsic value in itself outside the litigation arena”).  The differing treatment is also due to the fact that, as to work product, the Legislature had expressly rejected a proposed exemption (k) that would have applied to litigation strategy-related materials, and instead adopted an exemption (exemption (d)) that is narrower than the cognate exemption in the federal Freedom of Information Act.

3. Documents received in litigation, pursuant to a protective order. A public agency that is party to litigation may receive documents through the discovery process, and such documents are subject to disclosure under the Public Records Law unless an exemption applies.  However, if such documents are obtained or received by the agency only subject to a court-approved and “providently entered” protective order, then they are exempt from disclosure under the Public Records Law regardless of whether the law, standing alone, would have required disclosure. See Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 214, 944 N.E.2d 1019, 1023 (2011) (construing Public Records Law so as not to “invalidate an otherwise providently entered protective order,” in order to avoid raising “serious constitutional questions” about the law’s validity).

4. Governmental privilege rejected.  The Supreme Judicial Court has declined to recognize any governmental privilege broader than what is contained in the deliberative process exemption (d). See Babets v. Secretary of Exec. Office of Human Services, 403 Mass. 230, 239 n.8, 526 N.E,.2d 1261, 1266 n.8 (1988).

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D. Protective orders and government agreements to keep records confidential

If segregable, non-exempt portions of partially exempt records should be produced. Redaction is often physically done by blocking out allegedly exempt portions. G.L. c. 66, § 10(a); 950 CMR 32.03; Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 287-290, 391 N.E.2d 881 (1979); Globe Newspaper Co. v. Police Comm'r of Boston, 419 Mass. 852, 648 N.E.2d 419 (1995). However, where the necessary redactions would be particularly extensive or burdensome, or might still allow for “indirect identification” of the redacted information, courts may decline production altogether.  See, e.g., Globe Newspaper Co. v. Chief Med. Examiner, 404 Mass. 132, 134 n. 2, 533 N.E.2d 1356 (1989) (declining a redaction order where “it would be both burdensome and unnecessary to force the [public record holder] to redact the reports in order to extract the nuggets of nonconfidential information” requested); Logan v. Comm'r of Dept. of Indus. Accidents, 68 Mass. App. Ct. 533, 536-37, 863 N.E.2d 559, 563 (Mass. App. Ct. 2007) (suggesting that a showing of both burden and non-necessity may be required).

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E. Interaction between federal and state law

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1. HIPAA

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2. DPPA

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3. FERPA

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4. Other

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F. Segregability requirements

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G. Agency obligation to identify basis of redaction or withholding

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III. Record categories - open or closed

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A. Autopsy and coroners reports

Autopsy reports are medical records exempt from disclosure pursuant to exemption (c). LeBlanc v. Commonwealth, 457 Mass. 94, 96-97, 927 N.E.2d 1017, 1019 (2010); Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135-36, 533 N.E.2d 1356 (1989); Boston Firefighters Union, IAFF, Local 718 v. WHDH TV, Channel 7, No. A.C.2007-J-455 (Mass. App. Ct. Oct. 5, 2007) (Single justice; vacating prior restraint against media disclosure of autopsy report despite non-public record status under Public Records Law). By statute, the office of the chief medical examiner may not even choose to provide reports unless surviving spouse or next of kin makes the request in a written affidavit and, if the case is one of unnatural or suspicious death and the district attorney is directing and controlling the investigation of the death, the district attorney provides written permission.

From Coroners reports:

As with medical examiners' reports, autopsy reports have been held to be medical records and exempt from disclosure. Judicial inquests are closed. G.L. c. 38, § 8. Kennedy v. Justice of District Court, 356 Mass. 367, 252 N.E.2d 201 (1969). Judge's report and transcript become available if District Attorney certifies no prosecution is proposed or if trial of persons named in report as responsible for death is complete. Kennedy, supra.

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

Regulated trades and professions, typically licensed and monitored by governmental boards of registration, hold a curious place in the public-records pantheon.  All are subject to the Massachusetts Fair Information Practices Act (“FIPA”), G.L. c. 66A, which regulates the government’s use of personal information relating to identifiable individuals.  Each also tends to be subject to its own statutory scheme declaring some of the licensing information to be confidential.  But all of those provisions are sometimes overridden by the terms of the Public Records Law.  See 1976-77 Mass. Op. Atty. Gen. No. 32, 1977 WL 36238 (Mass. Att’y Gen., May 18, 1977).

A 1977 opinion of the Attorney General attempted to wade through the morass, examining public access to records of 16 boards of registration: Architects, c.112, §§60A-60O; Barbers, c. 112, §§ 87F-87S; Chiropractors, c. 112, §§ 89-97; Dental Examiners, c. 112, §§ 43-53; Dispensing Opticians, c. 112, §§ 73C-73L; Electricians, c. 141, §§ 1 et seq.; Embalmers and Funeral Directors, c. 112, §§ 82-87; Medicine, G.L. c. 112, §§ 2-12R; Nursing, c. 112. §§ 74-81C; Nursing Home Administrators, c. 112, §§ 108-117; Optometry, c. 112, §§ 66-73B; Pharmacy, c. 112, §§ 24-42A; Podiatry, c. 112, §§ 13-22; Professional Engineers and Land Surveyors, c. 112, §§ 81D-81T; Real Estate Brokers and Salesmen, c. 112, § 87PP-87DDD; and Veterinary Medicine, c. 112, §§ 54-60;   It noted, first, that all of the agencies were subject to FIPA’s mandate that every state agency maintaining a personal data system must prohibit outsiders – other agencies and third parties alike – from access to personal data (personal information concerning identifiable individuals) unless access is authorized by statute or regulation, or the data subject and the agency have both consented to disclosure.  Thus, under FIPA, the boards may not disclose names, addresses, registration numbers, or other personal data unless permitted by statute or consent.

Second, the opinion looked to the agencies’ governing statutes.  All explicitly required public access to some amount of personal data (varying from one agency to the next) held by the board.  For example, the Board of Registration in Medicine must make public the names of registered medical doctors, G.L. c. 112, § 4, while the Board of Registration of Professional Engineers and Land Surveyors must go much further, publicizing each registrant’s name, age, residence, business address, and educational and professional qualifications, G.L. c. 112, § 81H).  The affirmative access provisions of each statute will always trump the FIPA restrictions, the Attorney General concluded.  Op. Atty. Gen. No. 32.

Third, the Attorney General considered the Public Records Law and its sweeping definition of “public records” that are presumptively available to the public.  It ruled, essentially, that the Public Records Law also overrules FIPA’s restrictions to the extent that certain personal data falls outside the law’s privacy exemption (exemption (c)).  Specifically, it determined that, at the very least, the boards must disclose names, addresses, registration numbers, educational and professional training, and experience.  Unless otherwise mandated by a governing statute, they need not disclose other personal data, such as age and marital status.

Whether complaints and investigatory files relating to specific licensed professionals must be made public (in whole or in part) depends on an evaluation of the applicability of the privacy exemption (c) and the investigatory exception (f).  A 1977 Attorney General ruling suggests that exemption (c) may shield from disclosure any complaint the allegations of which would jeopardize an individual’s reputation.  See 1976-77 Mass. Op. Atty. Gen. No. 32, 1977 WL 36238 (Mass. Att’y Gen., May 18, 1977).

A 1977 Attorney General ruling concluded that the outcome of adjudicated complaints against licensees are public records, which must be disclosed because of the “strong public interest in the professional conduct of individual practitioners.”  See 1976-77 Mass. Op. Atty. Gen. No. 32, 1977 WL 36238 (Mass. Att’y Gen., May 18, 1977).

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C. Bank records

Government financial records are normally open. G.L. c. 4, §  7, cl. 26 (records include "financial statements"). Commercial bank records filed with a government agency are normally not open. G.L. c. 4, § 7, cl. 26(a); G.L. c. 167, § 2. See also Ottaway Newspapers Inc. v. Appeals Court, 372 Mass. 539, 362 N.E.2d 1189 (1977) (holding that where newspaper wanted court records with information about the potential removal of the bank president and several board members, sealing order could be upheld even if the records were court documents outside the scope of the public records law exemption because the policy of the banking laws supported impoundment.). Banks' annual reports on their financial condition are public, as are banks' alternative community reinvestment statements. G.L. c. 167, § 14.

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D. Budgets

Government financial records are normally open. G.L. c. 4, §  7, cl. 26 (records include "financial statements").  Whenever records are sought that involve the expenditure of taxpayer funds, a good case can be made for at least partial disclosure.  As one Superior Court judge ruled when enjoining a municipality to produce certain records relating to applications for disability benefits, there is a strong public interest in the prompt disclosure about matters affecting “the budgets of our cities and towns, which are already struggling to fund important public services in these difficult economic times.” Patriot Ledger v. Masterson, 09-400, 2009 WL 928796 (Mass. Super. Apr. 2, 2009) (Sanders, J.).

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E. 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 publicly available. G.L. c. 4, § 7, cl. 26(g). Occasional specific statutes apply to the records of a particular body. See, e.g., G.L. c. 164, § 47D ("A municipal lighting plant . . . shall be exempt from the public record requirements . . . in those instances when necessary for protecting trade secrets, confidential, competitively sensitive or other proprietary information. . ."). Other such records are normally open.  So, for example, a memorandum submitted as an exhibit in a hearing before the Securities Division of the Secretary of the Commonwealth would be a public record, even though it contained commercial information, because it was not voluntarily submitted, was not provided in connection with government policy-making, and was not submitted confidentially.  Guide to Massachusetts Public Records Law (Sec’y of State, rev. March 2009) at 16-17.

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F. Contracts, proposals and bids

Bids and proposals are not available until after bids have been opened or time for receipt of bids has expired. G.L. c. 4, § 7, cl. 26(h). Fiscal statements filed by governmental contractors are normally not available. See G.L. c. 30, § 39R(f). Certain contracts for hospital or related health care services, if between a government-operated medical facility and another entity specifically described in the Public Records Law, may be withheld pursuant to exemption (m). G.L. c. 4, § 26(m).

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G. Collective bargaining records

Not covered in exceptions to Public Records Law but they are normally not available at least until an agreement is reached. This result flows from collective bargaining strategy and negotiation exception in the Open Meeting Law. See G.L. c. 39, § 23B(3).

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H. Economic development records

The Supervisor of Public Records has suggested that the state could rely on the privacy exemption to withhold names and addresses of state residents receiving unemployment benefits. (See C. Herman, “Rebate records withheld by state,” CommonWealth, Feb. 8, 2011.)

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I. Election Records

The records from pre-election voter listings to post-election result certifications are open. This includes all information regarding voter registration. See G.L. c. 51, § 40 (registrars' records shall at suitable times be open to public inspection); § 41 (registrars shall preserve all documents in their custody relative to listing and registration, for two years after the dates thereof, provided that affidavits of registration shall be preserved and shall be deemed to be public records); § 55 (voting lists shall be printed and made available to any person, at a reasonable fee not to exceed the cost of printing the list, upon request).

The Office of the Secretary of the Commonwealth is required by G.L. c. 51, § 47C to maintain a Central Voter Registry. According to the statute, the names and addresses listed therein are not public records, and are only open to statewide committees. The Attorney General has stated, however, that other voter information in the Central Registry (e.g., voter's party enrollment, effective date of registration) is not exempt and should be available to statewide committees and the public. The Office of the Secretary is obligated to provide access to voter information regardless of other means of access. Opp. Atty. Gen. No. 01/02-1 (Oct. 11, 2001).

If voter or address information is needed, a good source is the street list of all known inhabitants age 17 or older of a given city or town. This list is revised annually and is available from the city or town clerk. G.L. c. 51, §§ 6-7. List is also normally available on computer tape. See 950 CMR 32.06(6).

Nomination certificates and certificates of election results are public records (G.L. c. 54, § 117), as are information regarding initiative and referendum petitions (G.L. c. 54, § 54) and campaign finance data  (G.L. c. 55, §§ 25-26).

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J. Emergency Medical Services records

“As a general rule, medical information [about an identifiable individual] will always be of a sufficiently personal nature to warrant exemption” under the privacy exemption. Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 11.

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K. Gun permits

The Public Records Law contains an independent provision expressly prohibiting the release, by the state or any licensing authority, of information “divulging or tending to divulge” names and addresses of individuals who own, possess, or are licensed to carry firearms.  G.L. c. 66, § 10(d). See also G.L. c. 140, §§ 1210131P (discussing sale of firearms).  Thus, a request for firearm records of a specific individual would be denied in its entirety, as there is no other way to shield the individual’s identity.  Where there is a request, not specific to a particular individual, for other material relating to firearm applications or identification cards, the custodian may redact identifying details (exemption (j)), social security numbers (exemption (c)) or CORI information (exemption (a)), but normally may not withhold the material entirely.

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L. Homeland security and anti-terrorism measures

A 2002 amendment to G.L. c. 4, § 7, cl. 26 added subparagraph (n), which exempts:

[R]ecords, 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 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 (b) of section 10 of chapter 66, is likely to jeopardize public safety.

This exemption was enacted in response to the events of September 11, 2001 and was designed to increase security and prevent future attacks against persons and public places. It was intended to apply only to public buildings, public transportation, and public areas only. The exemption requires a custodian to balance the public right to know against public safety, and in doing so to take into consideration “all apparent facts and circumstances available.” The custodian must use "reasonable judgment" in granting or denying a request, and must “articulate with specificity” both the factors underlying that judgment and the basis for the belief that the records were “likely to be used” to endanger public safety. The custodian may not require a requester to provide additional information about him or herself or his or her motives, but the custodian may inform the requester that he or she will reevaluate a denied request if further information is voluntarily provided. Supervisor of Public Records (SPR) Bulletin, No. 04-03 (Apr. 1, 2003).The exemption was enacted even though the Legislature was advised that by requiring the custodian to make a “value judgment” about the requester, it is “specifically antithetic to the … presumptions that all records are public records and all requesters shall be treated uniformly.” Guide to the Massachusetts Public Records Law (Sec’y of State, rev. March 2009), at 22-23. Under this exemption, it is entirely possible, and permissible, that a custodian might properly provide requested blueprints to one requester, and deny the same blueprints to another.  Id.

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M. Hospital reports

Medical files and information are “absolutely exempt from mandatory disclosure where the files or information are of a personal nature and relate to a particular individual.” Globe Newspaper Co. v. Boston Retirement Board, 388 Mass. 427, 434, 446 N.E.2d 1051, 1056 (1983). See also SPR Bulletin No. 3-04, “Internal Affairs and Personnel Records” (March 10, 2004) (“Clearly, all medical information, data and records of whatever type and from whatever source may be properly withheld in their entirety.”). Hospital patient records, even if kept by a public facility, are also confidential. G.L. c. 111, § 70E(b). Certain contracts for hospital or related health care services, if between a government-operated medical facility and another entity specifically described in the Public Records Law, may be withheld pursuant to exemption (m).  G.L. c. 4, § 26(m). A bevy of other statutory provisions mandate confidentiality of particular medical records under certain circumstances.  See, e.g., G.L. c. 111, § 110B (treatment or examination of Reyes syndrome); G.L. c. 111, § 111B (registry of malignant diseases); G.L. c. 111, § 202 (report of fetal deaths); G.L. c. 111D, § 6 (report of infectious diseases). However, records relating to municipal health insurance plans and the costs of providing health insurance benefits to employees would be public records.  Guide to Massachusetts Public Records Law (Sec’y of State, rev. March 2009), at p. 22. Moreover, the public does have access to physician profiles that include hospital affiliation, certain disciplinary actions, criminal history information, malpractice convictions and settlements, as well as certain personal background information. G.L. c. 112, § 5. Physician profile information may be obtained at http://profiles.massmedboard.org/MA-Physician-Profile-Find-Doctor.asp or by calling the Massachusetts Board of Registration in Medicine.

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N. Personnel records

Exempt personnel records include, at a minimum, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.” Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792, 798, 731 N.E.2d 63, 67 (2000).  Not all information contained in the personnel file is exempt, however. Particularly private information such as an employee’s name, home address, date of birth, and social security number is the type that the Legislature had in mind when it identified “other materials or data relating to a specifically named individual.”  Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792, 799, 731 N.E.2d 63, 68 (2000).

"[P]ersonnel files or information are absolutely exempt from mandatory disclosure where the files or information are of a personal nature and relate to a particular individual." Globe Newspaper Co. v. Boston Retirement Board, 388 Mass. 427, 438, 446 N.E.2d 1051 (1983).  Nonetheless, Massachusetts courts have been urged to scrutinize skeptically an agency’s invocation of the “personnel files” clause of exemption (c). Documents "are not to be insulated from disclosure merely because they have been designated by the defendants as constituting a 'personnel file.' What is critical is the nature or character of the documents, not their label." Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 764 N.E.2d 847 (2002).  The Supreme Judicial Court has set out three possible procedures to determine whether such records are in fact exempt: (1) creation of an itemized and indexed document log setting forth justifications for claims of exemption, which can be reviewed by opposing counsel and the judge; (2) inspection of the documents by opposing counsel pursuant to a protective order; or, as a last resort, (3) in camera inspection by the judge.

Because a major purpose of the Public Records Law is to enable taxpayers to monitor government activities and employees, the exemption for “personnel records” is a narrow one; not all records relating to an individual’s employment will make the cut. Ordinary evaluations, performance assessments, and disciplinary determinations are exempt personnel records under the statute.  But the employee’s name, address, and base and overtime pay are not exempt under the “personnel records” prong, even when contained in a personnel file, because they are merely “payroll records,” and are not records “useful in making employment decisions.”  Brogan v. School Committee of Westport, 401 Mass. 306, 308 (1987) (holding that employee absentee records are non-exempt “payroll records,” not exempt “personnel records”).  Nor is a government agency’s investigation of its own actions and employees.

Materials relating to the conduct of an internal affairs investigation within a police department, such as witness interviews, reports, and conclusions, are not exempted from the Public Records Law. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 787 N.E.2d 602 (2003) (noting that public ability to monitor investigations of police officers is critical for maintaining citizens’ trust and confidence); accord Leeman v. Cote and City of Haverhill Police Dep’t, No. 05-5387, 21 Mass. L. Rptr. 411 (Suffolk Super. Ct. Sept. 18, 2006). The disciplinary outcome, however, was exempt, because it directly related to the making of “employment decisions regarding the employee.”  Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5  (2003) (holding that “the bricks and mortar of the investigation and the documenting of its results” are public records, but the “actual order and notice of disciplinary action issued as a personnel matter from the chief to the target of the disciplinary investigation” are not). The Supervisor of Public Records has adopted the distinction. SPR Bulletin No. 3-04, “Police Advisory: Internal Affairs and Personnel Records” (March 10, 2004).

The determination of whether records are "of a personal nature" may sometimes require litigation. See, e.g., Brogan v. School Committee of Westport, 401 Mass. 306, 516 N.E.2d 159 (1987) (Public employee attendance and absentee records essentially nonpersonal and available).

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1. Salary

Names, base salaries, and overtime pay of police officers are not “personnel” information, nor are they intimate details of a highly personal nature. Therefore, they do not fall under the privacy exemption, and they must be disclosed. Hastings & Sons Pub. Co. v. City Treasurer of Lynn, 374 Mass. 812, 814-15, 375 N.E.2d 299 (1978).

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2. Disciplinary records

A junior high school’s disciplinary report – which led to a teacher’s 4-week suspension for allegedly inappropriate comments written on two female students’ homework papers – was an exempt personnel record, the Supreme Jud icial Court determined.  Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792, 798, 731 N.E.2d 63 (2000).

An exempt disciplinary report is to be distinguished from an internal affairs investigation, which is a public record that normally must be disclosed.  “[A]n internal affairs investigation is a formalized citizen complaint procedure, separate and independent from ordinary employment evaluation and assessment.  Unlike other evaluations and assessments, the internal affairs process exists specifically to address complaints of police corruption …, misconduct …, and other criminal acts that would undermine the relationship of trust and confidence between the police and the citizenry that is essential to law enforcement.”  Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 6-7 (2003), quoted in SPR Bulletin No. 3-04, “Internal Affairs and Personnel Records” (March 10, 2004).

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3. Applications

A blank application form would be a public record.  See Wakefield Teachers Ass’n, 431 Mass. at 800 (noting that a “generic job description or generic qualification requirement” that does not implicate any individual’s privacy is a public record).  An individual employee’s completed application is likely to be exempt.  Globe Newspaper Co. v. Boston Retirement Board, 388 Mass. 427, 435 (1983).

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4. Personally identifying information

Names, home addresses, and job classifications of a group of employees is not exempt; rather, under exemption (c), those facts constitute “other materials or data,” and are not “intimate details” of a “highly personal” nature.  Pottle v. School Committee of Braintree, 395 Mass. 861, 865 (1985); Wakefield Teachers Ass’n, 431 Mass. at 801.  See also Cape Cod Times v. Sheriff of Barnstable County, 443 Mass. 587. 823 N.E.2d 375 (2005) (requiring disclosure of names and addresses of county’s reserve deputy sheriffs).

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5. Expense reports

Whether Boston mayor’s office must disclose its employees’ telephone records depends on factors including whether the calls are personal or for business and, if personal, whether they are paid for using public funds.  Attorney General v. Assistant Comm’r of Real Property Dep’t of Boston, 380 Mass. 623, 627, 404 N.E.2d 1254, 1257 (1980) (vacating trial court’s disclosure order and scheduling a hearing to apply balancing test under privacy exemption (b)). The Supervisor of Public Records has ruled that telephone numbers of calls made or received by city employees which relate to their public business must be disclosed.  E. Allegrini, “Public has right to know who Brockton employees are calling,” PatriotLedger.com (July 17, 2008).

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6. Evaluations/performance reviews

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7. Complaints filed against employees

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8. Other

Student evaluations of their teachers are part of “personnel file” and are exempt from disclosure.  Connolly v. Bromery, 15 Mass. App. Ct. 661, 662 (1983).

Considerable attention has been paid in recent years to municipal awards of disability benefits to public employees, an area where the individual interest in medical privacy butts up against the public interest in knowing about the expenditure of public funds.  On the one hand, the accessibility of pension and disability records will depend on whether they contain medical information that, directly or indirectly, relates to an identifiable individual.  When reviewing this issue, courts have been vigilant in protecting medical privacy.  See, e.g., Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438, 446 N.E.2d 1051 (1983); see also Logan v. Commissioner of Dep’t of Industrial Accidents, 68 Mass. App. Ct. 533, 535-36, 863 N.E.2d 559, 562 (Mass. App. Ct. 2007). Even redacted medical records (shorn of names and other data) will be withheld where there is a “grave risk” that individuals familiar with the patient (such as co-workers) could identify the patient and his medical condition.  Id. (“indirect identification”); see also Globe Newspaper Co., 388 Mass. at 438; Wakefield Teachers Assn. v. School Comm. of Wakefield, 431 Mass. 792, 795, 731 N.E.2d 63 (2000). Nevertheless, the result has been different where the requester seeks only the names of doctors who certified disability applications.  Patriot Ledger v. Masterson, 09-400, 2009 WL 928796 (Mass. Super. Apr. 2, 2009).  A carefully tailored records request that does not identify individual claimants may prove successful, particularly because, as one judge ruled, “there is a strong public interest in prompt disclosure of this information. ... Much of the process by which disability pensions are awarded is shrouded in secrecy. The awards themselves, however, involve taxpayer money and impact the budgets of our cities and towns, which are already struggling to fund important public services in these difficult economic times. Although no individual should have the intimate details of his or her medical history open for public inspection, the public must be also be satisfied that the applicants for disability are not abusing the benefits extended to them and that the powers conferred on retirement boards to grant or deny such applications are being exercised wisely. If some light can be shed on the process by which those decisions are reached in a way which does not impinge on individual privacy, then that will promote public confidence – or lead to reform if problems are revealed.  Patriot Ledger v. Masterson, 09-400, 2009 WL 928796 (Mass. Super. Apr. 2, 2009) (Sanders, J.).

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O. Police records

In a blunt memo to state and local police agencies, the Supervisor of Public Records in 2003 set out the law: “Anyone can get any police record at anytime upon request.  The record may be redacted to remove bits of information such as witness and victim's names and addresses.  After a redaction takes place, [the custodian] must explain in writing to the requester what information was redacted and the specific reasons why the record was sanitized.  The remaining portions of the record must then be released.”  SPR Bulletin 3-03, Public Record Requests and C.O.R.I. (Nov. 21, 2003).

“There is little doubt that MOST police records are public records and must be available to anyone upon request,” the Supervisor’s 2003 memorandum continued. “Exemption (f), the ‘investigatory exemption’ of chapter 4, section 7(26) may be employed by the custodian to allow for the redaction of the names and addresses of witnesses and victims or to remove information on the record which if released, will so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” Id. The 2003 memo concludes: “The burden of proving the prejudicial effect on law enforcement and the balancing test concerning the public interest lies squarely on the shoulders of the custodian.  This office will not uphold any claim of an exemption if it is not substantiated by clear evidence.”  Id.

The Supervisor had released the memorandum in response to “a troubling trend within the police community” of citing the Criminal Offender Record Information law, G.L. c. 6, § 167, as supposed justification to avoid disclosing public records.  Id.  It provides police departments a checklist, noting that information may not be withheld under CORI if any of the following apply: it pertains to a crime for which jail time is possible; concerns “evaluative information,” typically used in connection with bail, sentencing, or probation proceedings; concerns “intelligence information,” such as surveillance reports; does not pertain to an “identifiable individual” who is alive; is limited to aggregated statistical or analytical data; or was not recorded as a result of the initiation of criminal proceedings such as a criminal charge, arrest, pre-trial proceeding, or other judicial proceeding.  Id. at 1-3.

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1. Accident reports

Local police are required to report, to the state registrar of motor vehicles, every motor vehicle accident involving fatality or serious injury.  G.L. c. 90, § 29.  They must make monthly reports to the State Commissioner of Public Safety disclosing how many persons of each gender were arrested during the prior month.  G.L. c. 124, § 9.  They must report any injury or death resulting from the use of a firearm or other weapon to the law enforcement division of the state division of fisheries and game.  G.L. c. 131, § 85A.  Any accident involving gas or electricity must be reported to the state department of telecommunications and energy. G.L. c. 164, § 95. Lord v. Registrar of Motor Vehicles. 347 Mass. 608, 612 (1964) (holding that Registry must disclose accident reports upon request).

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2. Police blotter

By statute, Massachusetts requires all municipal police departments (including deputized college and university police departments) to “make, keep and maintain a daily log, written in a form that can be easily understood, recording, in chronological order, all responses to valid complaints received, crimes reported, the names, addresses of persons arrested and the charges against such persons arrested. All entries in said daily logs shall, unless otherwise provided in law, be public records available without charge to the public during regular business hours and at all other reasonable times….”  G.L. c. 41, § 98F.

Daily police logs constitute public records and do not fall under the CORI exemption from the public records definition. Commonwealth v. Holt, Nos. CRIM.A. 95-0026, 95-0021, and 95-0042, 4 Mass. L. Rptr. 539, 1995 WL 670141, *2 (Mass. Super. Ct. Oct. 17, 1995) (“police logs are public records, are non-CORI material, and fall outside CORI’s scope of protection”); Tomczak v. Town of Barnstable, 901 F. Supp. 397, 404 (D. Mass. 1995); see also G.L. c. 6, § 172, ¶ 8 (CORI statute, noting that “public records” include “police logs, arrest registers, or other similar records compiled chronologically, provided that no alphabetical arrestee, suspect, or similar index is available to the public, directly or indirectly…”); 803 CMR 2.04(7) (“CORI shall not include public records as defined in M.G.L. c. 4, § 6 [sic] including police daily logs under M.G.L. c. 41, § 98F”). Thus, the daily police logs not only have to be maintained, they must also be produced, without redaction, pursuant to a public records request. Indeed, a Secretary of State publication implies that the request for a “police daily log” would be a routine inquiry under the statute. Guide to Mass. Pub. Rec. Law (Sec’y of State, rev. March 2009), at p. 1.

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3. 911 tapes

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4. Investigatory records

The Supreme Judicial Court has stated that there is no blanket exemption to public disclosure for investigatory materials; an exemption must be determined on a case-by-case basis.  Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 383-84 (2002).  Where the exemption applies, it must be narrowly construed so as to allow redaction only “of the names and addresses of witnesses and victims or to remove information on the record which if released, will so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.”  SPR Bulletin No. 3-03, “Public Record Requests and C.O.R.I.” (Sec’y of State, Nov. 21,  2003), at 4.

See also Republican Co. v. Appeals Court, 442 Mass. 218, 223 n.9, 812 N.E.2d 887, 893  n.9 (2004) (Public Records Law exception for investigatory materials is irrelevant to public right of access to materials submitted to court in support of petition for search warrant).

Nevertheless, the same court noted in Harvard Crimson, Inc. v. President And Fellows Of Harvard Coll., 445 Mass. 745, 755, 840 N.E.2d 518, 525 (2006), that under G.L. c. 4, § 7, cl. 26(f ), public records do not include “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.” Such non-public materials, the court said, could include “accounts of police investigatory efforts including the police officer's own observations of the incident in question, statements taken from witnesses, additional information obtained from other sources, some confidential, and leads and tips to be pursued,” quoting Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62, 354 N.E.2d 872 (1976). Moreover, the Supreme Judicial Court concluded: “The exemption set forth in G.L. c. 4, § 7, cl. 26(f), applies to both open and closed investigations. See id. at 63, 354 N.E.2d 872. Contrast Matter of a Subpoena Duces Tecum, 445 Mass. 685, 689-691, 840 N.E.2d 470 (2006).”  445 Mass. at 755.

In Bougas v. Chief of Police of Lexington, 371 Mass. 59 (1976), the Supreme Judicial Court refused to compel disclosure of investigatory materials, including letters from citizens who witnessed the incident subject to investigation.  Even though the investigatory reports had been disclosed to a limited group and that the investigation had been concluded, the court found that confidentiality was necessary to enable the police to investigate

The Supervisor of Public Records had made it clear that pre-arrest reports or data, names of informants and witnesses, and surveillance data cannot be withheld based on the C.O.R.I. law.  SPR Bulletin No. 3-03 (Sec’y of State, Nov. 21, 2003) (noting that such information might be withheld under another exemption, if applicable).

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5. Arrest records

An “arrest journal, which reveals only arrests,” is a more limited collection of information than “police logs which include a much broader range of items, such as motor vehicle stops which did not result in arrest.”  Since daily police logs constitute public records and do not fall under the CORI exemption from the public records definition, Commonwealth v. Holt, 4 Mass. L. Rptr. 539 (Mass. Super. 1995), the same is true of arrest records, so long as no alphabetical or similar index is made available, id. at n.4.  Similarly, pre-arrest reports are public records that do not fall under the CORI exemption.  SPR Bulletin 3-03 (Nov. 21, 2003).

Municipal police in Massachusetts must make monthly reports to the State Commissioner of Public Safety disclosing how many persons of each gender were arrested during the prior month.  G.L. c. 124, § 9.

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6. Compilations of criminal histories

Massachusetts strictly limits the public dissemination of criminal offender record information.  By request to the Criminal History Systems Board along with payment of a fee, a member of the public may obtain a copy of the criminal record of any individual who meets both of the following criteria: (1) was ever given a committed or suspended sentence, or was ever convicted of a felony potentially punishable by incarceration for 5 years or more; and (2) is currently incarcerated, on probation or parole; or was discharged in the past year for a misdemeanor, the past 2 years for a felony, or the last 3 years after violating or being denied parole.  803 Mass. CMR 3.06.  One may also obtain one’s own criminal record, for a fee.  803 CMR 6.02.  See generally Massachusetts District Court Department of the Trial Court, “A Guide to Public Access, Sealing & Expungement of District Court Records” (Admin. Office of the Trial Court, rev. April 2010), at 32-33.

The law was amended in 2010 to reduce the waiting period before an individual may seek to have his or her criminal records sealed.  Beginning May 4, 2012, individuals may request that their misdemeanor records be sealed 5 years after the conviction or any period of incarceration, whichever is later; felony records, 10 years after the conviction or any period of incarceration, whichever is later; Level I sex offenders, 15 years after the conviction or any period of incarceration, or after the obligation to register as a sex offender ceases, whichever is later (no sealing is available for Level 2 or 3 sex offenders).  Massachusetts does not provide for automatic sealing.  Rather, a request for sealing must be made pursuant to G.L. c. 276, §§ 100A, 100C.

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7. Victims

Victim statements, like witness statements, may be released after redaction for medical information and indirect identification of a witness or a victim. Troublingly, the Supervisor of Public Records has opined, without citation, that if a requester “is familiar with the individuals who were involved in the incident(s) …, then the department may withhold the entire record because it would not be possible … to redact the report in a manner as to avoid indirect identification of the voluntary witness and complainant.” “Guide to Massachusetts Public Records Law” (Sec’y of State, rev. March 2009), at 16.

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8. Confessions

No relevant cases found.

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9. Confidential informants

Witness statements may be withheld (indefinitely) under exemption (f) if their release would create a grave risk of directly or indirectly identifying a private citizen who volunteers as a witness.  Globe Newspaper Co. v. Boston Retirement Board, 388 Mass. 427, 438 (1983) (defining “identifying details” and “grave risk of indirect identification”).  Troublingly, the Supervisor of Public Records has opined, without citation, that if a requester “is familiar with the individuals who were involved in the incident(s) …, then the department may withhold the entire record because it would not be possible … to redact the report in a manner as to avoid indirect identification of the voluntary witness and complainant.”  “Guide to Massachusetts Public Records Law” (Sec’y of State, rev. March 2009), at 16.

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10. Police techniques

Reports of discharge of weapons by police officers must be disclosed.  Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 284, 293 (1979).

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11. Mugshots

Mug shots taken prior to the initiation of criminal proceedings are public records and do not fall under the CORI exemption from public records. SPR opinion letter, Aug. 27, 2010, as reported in L. Parnass, “State Sides With Northampton, Mass. Newspaper in Mug Shot Flap,” New England First Amendment Center, Sept. 26, 2010.

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12. Sex offender records

The state has an online database listing Level 3 sex offenders, and permitting indexing by community.  See http://sorb.chs.state.ma.us/.

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13. Emergency medical services records

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14. Police video (e.g, body camera footage, dashcam videos)

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15. Biometric data (e.g., fingerprints)

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16. Arrest/search warrants and supporting affidavits

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17. Physical evidence

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P. Prison, parole and probation reports

Generally not public. The Secretary of State has opined that Department of Correction security policies and procedures would be exempted under exemption (b). Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), p. 10. Additionally, G.L. c. 276, § 100, specifically provides that probation reports and records “shall not be regarded as public records and shall not be open for public inspection.”

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Q. Professional licensing records

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R. Public utility records

Names and addresses of customers of a municipally owned utility would be public.  Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), p. 13.  So are records revealing the names and addresses of all state residents who arranged to receive rebates, through the state’s energy efficiency program, for their purchase of certain energy-saving appliances.  The Supervisor of Public Records rejected the state agency’s claim that the names and addresses, along with rebate amounts, were an unwarranted invasion of privacy, adding that any possible privacy right was outweighed by the public interest in how program funds were distributed.  (C. Herman, “Rebate records withheld by state,” CommonWealth, Feb. 8, 2011.)

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S. Real estate appraisals, negotiations

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1. Appraisals

ASYA: Under G. L. c. 4, § 7(26)(i). the definition of a public record does not include “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”

Coleman v. Boston Redevelopment Authority, 61 Mass. App. Ct. 239 (2004):  The exemption for appraisals is “parcel-specific” and, accordingly, is limited to the property which is the subject of the appraisal.  The exemption does not apply to properties that are merely related to the same project as the property subject of the appraisal.  (at 242).  The Massachusetts Appeals Court reasoned that “allowing the Commonwealth to keep its appraisals in a lockbox until the last gasp of the acquisitions in a project . . . would be an impermissible extreme in using a statute.”  (at 246)

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2. Negotiations

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3. Transactions

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4. Deeds, liens, foreclosures, title history

A municipal assessor’s list of tax delinquents is public record.  Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 157-58, 385 N.E.2d 505, 509 (1979).  So are names of taxpayers, descriptions of their property, and valuations of the property. Id., citing Hardman v. Collector of Taxes of North Adams, 317 Mass. 439, 443, 58 N.E.2d 848 (1945). For a fee, anyone can obtain “a certificate itemizing all amounts payable on account of tax liens on a piece of property.” Attorney Gen. v. Collector of Lynn, supra, citing G.L. c. 60, §§ 23, 23A.

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5. Zoning records

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T. School and university records

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1. Athletic records

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2. Trustee records

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3. Student records

Although public schools, colleges, and universities are subject to the Public Records Law, “student records” are not public records, and, for the most part, may not be provided to any third party (excepting certain designated authorities) without the student or parent’s “specific, informed consent.”  603 CMR 23.07(4). On this basis, the Supervisor of Public Records denied a newspaper’s appeal seeking the names of students disciplined for a school prank.  See J. Kinsella, “State upholds records denial…,” CapeCodToday.com, Dec. 31, 2008.

Such records may also be statutorily exempted by the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232(g), or under the Public Records Law on privacy grounds (exemption (c)).  D. Lapp, “Student Privacy Issues,” College and University Law Manual (Mass. Continuing Legal Education, Inc., 2009), § 4.4.2.  FERPA guarantees students the right to inspect and review their own education records, 20 U.S.C. § 1232(g)(1)(a); the right to request the institution amend education records that a student believes are inaccurate or that violate the student’s privacy rights; and the right, subject to numerous exceptions, not to have their education records disclosed without their consent. A student’s education records, as well as any “personally identifiable” information contained in those records, normally may not be disclosed without the student’s specific, written consent, 20 U.S.C. § 1232(g)(b); 34 CFR §§ 99.30, 99.31.

Student “directory information,” however, may be (but does not have to be) released after notice to the student or parents. 603 CMR 23.07(4). Such information includes student names, street and email addresses, telephone listings, date of birth, dates of attendance, courses of study, honors received, post-high school plans, and height and weight of sports team members.  Id.

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4. School foundation/fundraising/donor records

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5. Research material or publications

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6. Other

A private university’s police department is not subject to the Public Records Law, even though, by statute, certain of its officers have been appointed special State police officers, and others are county deputy sheriffs. Harvard Crimson, Inc. v. President and Fellows of Harvard College, 445 Mass. 745, 749, 840 N.E.2d 518, 522 (2006).  Thus, it is not required to make incident reports available to the public.  Id. (Bills aimed at changing that result have stalled in the Legislature year after year since that decision.)  Nevertheless, such a department is required (not by the Public Records Law but by G.L. c. 41, § 98F) to “make, keep and maintain a daily log … recording … all responses to valid complaints received, crimes reported, the names [and] addresses of persons arrested and the charges against such persons arrested,” and those logs shall be deemed public records.  Id., 445 Mass. at 754, 840 N.E.2d at 525 (2006). (Compliance, however, is spotty. See K. Brack, “Push to Open Campus Police Reports at Mass. Private Universities,” Huff Post College (Dec. 13, 2010).) The FERPA “education records” exemption does not include campus law enforcement records.  “Thus, to the extent records are created or maintained by a campus law enforcement unit for law enforcement purposes, FERPA does not apply.” Lapp, supra, § 4.4.2 (noting, however, that FERPA’s exemptions will apply if the law enforcement records are maintained by a component of the school other than the law enforcement unit, or for reasons (such as student discipline) other than law enforcement).

Additionally, a campus police chief must provide the State Police with a monthly report about each search or arrest warrant issued by a court in response to the school’s request, id., citing G.L. c. 22C, § 69; 515 CMR 5.07(1)(c) (1996), as well as a monthly report listing all felonies that have occurred within the institution’s jurisdiction, 515 CMR § 5.07(2).  “Once in the custody of the department of State police, a department within the Executive Office of Public Safety, see G.L. c. 6A, §§ 1, 2, 18, those reports would be available for public inspection,” subject to any applicable exemptions in the Public Records Law. Harvard Crimson, 445 Mass. at 755 & n.9, 840 N.E.2d at 525 & n.9.

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U. State guard records

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V. Tax records

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W. Vital Statistics

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1. Birth certificates

Records since 1915 are publicly available from the Registry of Vital Records and Statistics in Boston, except with respect to records of out-of-wedlock births, which are available only to the child, the listed parents, an adjudicated father, and the child’s legal guardian or legal representative. G.L. c. 46, § 2A. No internet access. Records from 1841 to 1915 are available at the State Archives. Earlier records, dating back to 1635, may be available from the clerk’s office in the municipality of occurrence.
Contact information contained in the voluntary adoption contact information registry maintained by the Registry of Vital Records and Statistics may be withheld from disclosure under exemption (q) of the Public Records Law. G.L. c. 4, § 7(26)(q).

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2. Marriage and divorce

Marriage records since 1915 are publicly available from the Registry of Vital Records and Statistics in Boston, except with respect to marriage records of persons born out of wedlock, which are available only to the bride, groom, and the legal representative or parent of either of them.  G.L. c. 46, § 2A. No internet access.  Marriage records from 1841 to 1915 are available at the State Archives.  Earlier marriage records, dating back to 1635, may be available from the clerk’s office in the municipality of occurrence.  Divorce records are available from the probate court where the divorce was obtained; an index of divorces from 1952 to present is available at the Boston Registry.

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3. Death certificates

Death records since 1915 are publicly available from the Registry of Vital Records and Statistics in Boston. No internet access. Records from 1841 to 1915 are available at the State Archives. Earlier records, dating back to 1635, may be available from the clerk’s office in the municipality of occurrence.

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4. Infectious disease and health epidemics

“As a general rule, medical information [about an identifiable individual] will always be of a sufficiently personal nature to warrant exemption” under the privacy exemption. Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 11.

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IV. Procedure for obtaining records

A custodian of records may not impose any policy or procedure for obtaining public records “that is adverse to the provisions of the Public Records Law and its Regulations.” SPR Bulletin No. 3, “Public record requests and C.O.R.I.” (Nov. 21, 2003).

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A. How to start

Public records requests may be made in person or in writing; and if in writing, by mail, facsimile or email. G.L. c. 66, § 10(b); 950 CMR 32.05(3).

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1. Who receives a request?

Request must be made to custodian of the government entity that has the record desired. Custodian means "the governmental officer or employee who in the normal course of his or her duties has access to or control of public records." 950 CMR 32.03. “Records custodians should use their superior knowledge” both “to assist the requester in obtaining the desired information” and “to ensure that the request is delivered to the appropriate party,” and therefore custodians should forward requests (or portions of requests) to the appropriate parties for a response. Guide to the Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 5, 6. A custodian may not refer a requester to a service bureau within the agency (such as a data processing division) or to a private entity that has contracted with the government to maintain a database. SPR Bulletin 3-96, “Application of the Public Records Law to Electronic Records Access” (Jun3 6, 1996).

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2. Does the law cover oral requests?

The statute is silent on oral requests but a regulation permits an in-person oral request. 950 CMR 32.05(3) (“A custodian shall not require written requests merely to delay production.”). While such a request will suffice for purposes of invoking the Public Records Law’s provisions, nevertheless sound practice is to put all requests in writing unless they are granted and fulfilled on the spot. Request should always be put in writing if a dispute or appeal is expected, because a written request is a mandatory prerequisite to administrative or court appeal. See G.L. c. 66, § 10(b); 950 CMR 32.08(2). According to the Secretary of State’s Office, an oral request may not be made by telephone. Mass. Pub. Recs. Guide (Sec’y of State, rev. March 2009), at p. 2.

There is no statutory requirement of advance arrangements but they may often be desirable as a practical matter. If a requester does not request a copy of the materials, but rather wants only to review them in the office of the record custodian, the request should be honored “and only minor fees associated with securing the record should be charged.” Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 3.

Because an oral request cannot be the basis of an administrative or court appeal, oral requester would have to make a second, written, request – and await a second, written, denial – before appealing. Presumably the period for appealing would run from denial of the written request, but the ambiguity of the law on this point is another reason to put in writing all requests that are not granted and fulfilled on the spot.

Any subsequent steps must be in writing.

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3. Required contents of a written request

No specific form or “magic words” are required for a written request, and the agency cannot demand that any specific form be used.  Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 2.

"Reasonable description" is required. 950 CMR 32.05(4). Be as specific as possible.  However, a records custodian “is required to use his or her superior knowledge of his or her records to determine the precise record or records that is responsive to the request.”  Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 4.

If copies are requested, a fee may be required before copies are delivered. See 950 CMR 32.05(6). If cost is more than ten dollars, custodian should give an estimate. 950 CMR 32.06(2). If the fee is known or can be approximated, enclosure of check with request is probably advisable.

This can be added but has no formal significance.

The custodian has no obligation to comply with prospective requests, but is not barred from doing so, and some custodians may be willing to honor a standing order for a repetitive type of record, or a request for online access or a subscription service to certain information. SPR Bulletin 4-96, Fees for Access and Copying of Electronic Public Records (June 7, 1996); Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at p. 7 (“Since those records are not yet in existence at the time of the request, they are … outside the purview of the Regulations and the custodian may set the fee for such access.”); G.L. c. 4, § 7, cl. 26 (defining “public records” as materials already “made or received” by the governmental entity). Note, however, that a request for a future document would not shorten the response period, Globe Newspaper Co. v. Commissioner of Education, 439 Mass. 124, 131, 786 N.E.2d 328, 333-34 (2003), and that a standing order probably would not be sufficient for an appeal; to be prudent, the requester would still have to submit a written records request after the government record is created or received by the agency, then appeal from denial of, or non-action on, that request.

The record custodian’s response must be in writing and must include either an offer to provide the requested materials, with “a good faith estimate of the cost of providing the record,” or “a denial of access to the record” that claims a “specific exemption to the public records law” and “details the specific basis for withholding the requested materials.”  Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at pp. 2, 6; 950 CMR 32.08(1).  In particular “[t]he denial must include a citation to one of the statutory exemptions upon which the records custodian relies, and must explain why the exemption applies.”  Id.  If no exemption is asserted, then it is to be presumed that the records sought are public.  SPR98/018 (Letter to Town of Billerica, April 21, 1998).

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4. Can the requester choose a format for receiving records?

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5. Availability of expedited processing

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B. How long to wait

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1. Statutory, regulatory or court-set time limits for agency response

Statute requires custodian to respond to request within 10 calendar days after receiving request. G.L. c. 66, § 10(b); see also Guide to the Massachusetts Public Records Law (Mass. Sec’y of State, rev’d March 2009), “Frequently Asked Questions” at p. 1 (“calendar days”) and at p. 6 (“as soon as practicable”).  If that period ends on a day that the Division of Public Records is closed, then the period extends until the end of the following business day.  950 C.M.R. 32.04(3). Although the Law states that records shall be produced "without unreasonable delay," and later states that they should be produced "within ten days," the Supreme Judicial Court has stated that the terms do not clash and that a reply within 10 days is presumptively reasonable. The presumption may be overcome by a requester who can demonstrate a compelling need for earlier disclosure, Globe Newspaper Co. v. Commissioner of Education, 439 Mass. 124, 786 N.E.2d 328 (2003), although it is believed that no case has ever deemed a less-than-10-day response time to violate the statute.

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2. Informal telephone inquiry as to status

Not prohibited. To the contrary, a polite follow-up inquiry to ensure that the request was received and is understood is a good idea as a matter of practice. This is particularly so if you are seeking a response before lapse of the 10-day response period. With state budget dollars limited, it is often the case that “the squeaky wheel gets the grease.”

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3. Is delay recognized as a denial for appeal purposes?

Ten days' inaction after receipt of request is treated as denial. G.L. c. 66, § 10(b); 950 CMR 32.08(1).

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4. Any other recourse to encourage a response

No legal recourse is available. Political pressure may be possible.

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C. Administrative appeal

There is an optional administrative appeal to the Supervisor of Public Records in the Office of the Secretary of the Commonwealth. G.L. c. 66, § 10(b); 950 CMR 32.08(2). A requester wishing to appeal the denial of a request has the choice of either petitioning the Supervisor for a decision, or else immediately initiating a court proceeding. The Supervisor has jurisdiction over appeals for non-compliance with any part of the regulations, including those relating to fees. 950 CMR 32.08(2). Except in cases where it is known that the record holder will litigate in any event, the administrative route is often quicker and less expensive.

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1. Time limit to file an appeal

No appeal is possible until custodian denies the request or fails to comply “with any provision of 950 . 32.00” – presumably meaning, in the typical case, that the 10-day response period has lapsed without a response. G.L. c. 66, § 10(b) (“fails to comply”); 950 32.08(2). An appeal to the Supervisor must be made “within 90 days,” a period that – according to a publication from the Secretary of the Commonwealth – runs from the date of the requester’s “original request.” See 950 32.08(2) and Guide to Mass. Pub. Rec. Law (Sec’y of State, rev. March 2009), “Frequently Asked Questions,” at 1.

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2. To whom is an appeal directed?

Individual agencies are not authorized to handle appeals.

Appeal is to Supervisor of Public Records within the Division of Public Records, part of the office of the Secretary of the Commonwealth.  The Supervisor has discretion whether or not to accept an appeal. 950 CMR 32.08(2); Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at pp. 2, 7.  Among other reasons, the Supervisor may reject an appeal if the request: appears to be an act of harassment, or is made in aid of the commission of a crime; involves a matter that is the subject of active litigation, administrative hearings, or mediation; or is made for purely commercial purposes.  950 CMR 32.08(2).  Once the appeal is accepted, Supervisor will normally “provide an opinion on the appropriateness of the records custodian’s response” and will also determine “whether the requested record is public.”  Guide, supra.

No formal appeal to Attorney General. In any event, should first petition Supervisor of Public Records.  If governmental entity fails to comply with Supervisor’s order on appeal, then Supervisor may refer the matter to the Attorney General.  When those two agencies have not seen eye to eye on the interpretation of the statute, however – as has frequently been the case – such referral either does not take place or else brings no results.  CommonWealth magazine reported in 2008 that of 52 public records appeals referred to the Attorney General’s office by the Supervisor of Public Records over a 5-year period, the attorney general ordered full release of documents in 10 cases and partial release in 3 more; reversed the Supervisor’s determination in another 10; and failed altogether to respond to 14. C. Herman, CommonWealth, Fall 2008 (Oct. 2, 2008). 

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3. Fee issues

The Supervisor of Public Records may make determinations regarding fees.

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4. Contents of appeal

It is described in the statute as a "petition." It must be in writing but can be in letter form. It must attach a copy of the original request to custodian and any written response from custodian. 950 CMR 32.08(2).

A fairly detailed description should have been included in the original request to custodian.

The letter should include a brief statement as to why record is public or, if custodian has given reason for denial, refutation of that reason.

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5. Waiting for a response

The regulations state that the Supervisor shall act and render a written opinion "within a reasonable time," 950 CMR 32.08(3), and the public records office normally responds reasonably promptly. An appellant would be wise to check on the status of the appeal periodically, because the Supervisor may close an appeal where there has been no communication from the requester for a six-month period.  Id.

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6. Subsequent remedies

None, other than court action.

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D. Additional dispute resolution procedures

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1. Attorney General

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2. Ombudsperson

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3. Other

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E. Court action

Any party aggrieved by the decision of the Supervisor of Public Records may obtain judicial review of the ruling pursuant to the Massachusetts Administrative Procedure Act, G.L. c. 30A, § 14.  See, e.g., Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1 (2003). “In any court proceeding . . . 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.” G.L. c. 66, § 10(C); see also Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 153, 385 N.E.2d 505, 507 (1979).

The Public Records Law does not confer on the public a right to intervene in an ongoing litigation for the purpose of gaining access to records filed or exchanged in that action. Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 217, 944 N.E.2d 1019, 1025 (2011).  However, permissive intervention may be available (independent of the Public Records Law) to a third party seeking to challenge the breadth of a protective order entered in court.  Id., 459 Mass. at 218, 944 N.E.2d at 1026 (noting that trial judge has “considerable discretion in deciding whether permissive intervention is appropriate”).

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1. Who may sue?

Any person whose written request to the records custodian has been denied, or not acted on for ten days, may sue. If instead an administrative appeal is taken and the custodian refuses to comply with an order of the Supervisor of Public Records, then the Supervisor may ask the District Attorney or Attorney General to enforce the order. G.L. c. 66, § 10(b). Historically, the Attorney General has not always honored such requests. The Superior Court and the Supreme Judicial Court are empowered to order compliance with the Supervisor’s ruling.  Id.

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2. Priority

The statute does not confer priority to public records challenges, although a court has discretion to allow a motion to expedite the case. A more effective strategy, in appropriate cases, may be to move for preliminary injunction at the start of the case.  One Superior Court judge has noted that “a motion for a preliminary injunction made in a lawsuit filed pursuant to G.L.c. 66 § 10 is precisely how an issue under the Public Records Statute is best addressed.”  Patriot Ledger v. Masterson, 09-400, 2009 WL 928796 (Mass. Super. Apr. 2, 2009) (Sanders, J.). There are strong arguments to be made that there is a public interest in affording injunctive relief where appropriate.  “[T]he Public Records Statute itself requires that records not exempt from disclosure be produced without unreasonable delay and that, where the custodian of public records fails to comply with a request, the Superior Court has jurisdiction to order compliance. G.L.c. 66 § 10(a) and (b); see also 950 C.M.R. 32.05(2).”  Id. The issue before the court is frequently a pure question of law.  And, often, the argument that can be made that there is “a strong public interest in prompt disclosure of this information which outweighs any conceivable harm to the defendants.”  Id. (emphasis added) (noting that “[m]uch of the process by which disability pensions are awarded is shrouded in secrecy,” even though  taxpayer money is involved and the awards have a significant impact on “the budgets of our cities and towns, which are already struggling to fund important public services in these difficult economic times”).  Nevertheless, because injunctive relief ordering records release would effectively end the case, courts may be resistant to take that path.  Indeed, in a thoughtful and nuanced decision, the same judge who decided Masterson declined to provide injunctive relief in another case where she was not convinced that the issues before the court were “purely legal.”  Globe Newspaper Co. v. Executive Office of Admin. and Finance, No. 011-1184 (Suffolk Super. Ct. April 25, 2011) (Sanders, J.).

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3. Pro se

An individual reporter, editor, or citizen may appear pro se. However, unless also a lawyer, he or she may not represent others or appear for a corporation. Varney Enterprises Inc. v. WMF Inc. 402 Mass. 79, 520 N.E.2d 1312 (1988) (corporation may not appear through corporate officer who is not licensed attorney).

Pro se appearance in court is normally not advisable. The law in this area is becoming fairly complex.  In appropriate cases, a public records appellant may be able to obtain pro bono counsel by contacting the Reporters Committee, the author of this outline, or other organizations involved in access issues.

In one extreme case, a court denied a records request altogether because it was unduly broad and appeared to be an act of harassment brought by a serial pro se plaintiff.  Erickson v. Executive Office of Environmental Affairs, 2006 WL 3010949 (Mass. Super. Ct. 2006) (Connolly, J.) (denying appeal brought by cat lady, who already had a documented history of making repeated overly broad and harassing requests, and who was seeking documents responsive to a request that was virtually unlimited in scope and time).  See also 950 C.M.R. § 32.08(2) (allowing Supervisor of Public Records to decline to take an administrative appeal that is deemed an act of harassment).

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4. Issues the court will address

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a. Denial

The court may address denial. G.L. c. 66, § 10(b).

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b. Fees for records

The court will probably address fees. Reasonableness of fees is basically a matter left to administrative discretion of Supervisor of Public Records. Op. Atty. Gen. Oct. 20, 1977, p.92.

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c. Delays

The court will not address delays since the right to initiate a suit exists immediately after the custodian refuses a request or has taken no action for ten days.

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d. Patterns for future access (declaratory judgment)

Authority to make declaratory judgments exists but is always discretionary with court. See G.L. c. 231 A.

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5. Pleading format

Complaint. Massachusetts has in substance adopted the Federal Rules of Civil Procedure.

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6. Time limit for filing suit

None prescribed.

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7. What court?

Superior Court. G.L. c. 66 § 10(b). Supreme Judicial Court theoretically has concurrent jurisdiction but will normally remand case to Superior Court.

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8. Burden of proof

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9. Judicial remedies available

The statute specifically authorizes the court "to order compliance," that is, production of the records sought. G.L. c. 66, § 10(b). In addition, court has general equitable powers to fashion appropriate remedies.

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10. Litigation expenses

Court costs are available but are normally nominal. The statute does not provide for awards of attorneys' fees and they are also not available under a private attorney general theory. See Pearson v. Board of Health of Chicopee, 402 Mass. 797, 525 N.E.2d 400 (1988). However, if record custodian's defenses are insubstantial or frivolous, court has authority to award attorneys' fees. G.L. c. 231 § 6F. Pearson, supra.

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a. Attorney fees

Not available.

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b. Court and litigation costs

Not available.

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11. Fines

Not available. The legislature has periodically declined to amend the statute to provide for fines.

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12. Other penalties

Not available.

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13. Settlement, pros and cons

As in any civil litigation, settlement is always possible if the parties are so minded. Unless the requester is interested in establishing legal precedent with respect to a particular kind or kinds of record, a settlement whereunder the documents sought, or the bulk of them, are produced is normally quicker and cheaper than protracted litigation.

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F. Appealing initial court decisions

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1. Appeal routes

Normal civil appeal to Massachusetts Appeals Court. In some cases, interlocutory appeal to single justice of appeals court may be available. See G.L. c. 231, § 118.

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2. Time limits for filing appeals

Thirty days from date of Superior Court judgment. M.R. App. P. 4(a).

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3. Contact of interested amici

Amici curiae may file briefs with leave of court but are allowed to argue orally only in extraordinary circumstances. M.R. App. P. 17. Responsible press organizations are routinely granted leave to file briefs as amici. Most frequent such amici are the Massachusetts Newspaper Publishers Association and the New England Newspaper and Press Association.

The Reporters Committee for Freedom of the Press may also be interested in joining as an amicus before the Supreme Judicial Court.

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G. Addressing government suits against disclosure

No known litigation on the subject, although in 2010 the Department of Transitional Assistance warned a records requester that if he publicized information about how much the government had reimbursed stores for food stamps – data that the agency had turned over to the requester – he could face federal fines of up to $1,000, plus up to a year in jail.  (The requester did not buckle, and the agency took no further action.)  See M. Morisy, “Transparency Missing from Government,” CommonWealth, Summer 2011 (July 6, 2011).

More typically, requests to enjoin disclosure typically take the form of third-party suits against the government agency to preclude release of the third party's documents that are in the agency's possession. See, e.g., Wakefield Teachers Ass’n v. School Committee of Worcester, 431 Mass. 792, 793 & n.4 (2000) (complaint for injunctive relief brought on teacher’s behalf by teachers’ exclusive bargaining representative). Media entities can typically intervene in such situations. See, e.g., Bechtel Infrastructure Corp. v. Massachusetts Turnpike Authority, 16 Mass. L. Rep. 149 (Super. Ct. April 10, 2003) (intervention by Boston Globe).

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Open Meetings

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I. Statute - basic application

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A. Who may attend?

"Any person." G.L. c. 39, § 23B. This clearly includes non-residents and non-voters.

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B. What governments are subject to the law?

Every “public body,” as defined in the Open Meeting Law, is subject to the statute.

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1. State

Subject to the law.  All state executive and legislative branch multiple-member boards, commissions, committees, and subcommittees established to serve a public purpose are “public bodies” subject to the law.  This specifically includes the governing board or body of any other authority established by the general court (a/k/a the Legislature) to serve a public purpose in the commonwealth or any part thereof.  If a body meets these criteria, it is subject to the law no matter how it was created, no matter how it is constituted, and no matter whether its members are elected or appointed. (A “subcommittee” is defined to include “any multiple-member body created to advise or make recommendations to a public body.”)  G.L. c. 30A, § 18 (definition of “public body”).

Excluded from the law.  The general court (Legislature) itself is not a “public body,” and therefore is excluded from the Open Meeting Law’s scope, as are committees or recess commissions of the general court (Legislature).  Bodies of the judicial branch are also not “public bodies” covered by the law.  Also excluded are any bodies “appointed by a constitutional officer solely for the purpose of advising a constitutional officer.”  G.L. c. 30A, § 18 (definition of “public body”).  Finally, the statute contains an additional provision specifically stipulating that “the board of bank incorporation” and the “policyholders protective board” are not public bodies, and, thus, they too are not subject to the Open Meeting Law.  Id.

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2. County

All county-level multiple-member boards, commissions, committees, and subcommittees established to serve a public purpose are subject to the law. It does not matter how the body was created or how it is constituted, and it does not matter whether the body’s members are elected or appointed. (A “subcommittee” is defined to include “any multiple-member body created to advise or make recommendations to a public body.”) G.L. c. 30A, § 18 (definition of “public body”).

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3. Local or municipal

All multiple-member boards, commissions, committees, and subcommittees of any city, town, district, or region, if established to serve a public purpose, are subject to the law. This specifically includes the governing board or body of any local “housing, redevelopment or other similar authority.” It does not matter how the body was created or how it is constituted, and it does not matter whether the body’s members are elected or appointed. (A “subcommittee” is defined to include “any multiple-member body created to advise or make recommendations to a public body.”)  G.L. c. 30A, § 18 (definition of “public body”).

OML applies to "governmental bodies." G.L. c. 39, §  23B. This term is defined to include "every board, commission, committee or subcommittee of any district, city, region or town." G.L. c. 39 §  23A. Decisions here interpreted this definition narrowly. See Gerstein v. Superintendent Search Screening Committee, 405 Mass. 465, 541 N.E.2d 984 (1989) (construes broadly exemption for preliminary screening committees interviewing municipal job applicants); Connelly v. School Committee of Hanover, 409 Mass. 232, 565 N.E.2d 449 (1991). (school principal-selection committee appointed by Superintendent of Schools, rather than by the School Committee, held not to be a committee of the town and was therefore exempt from the OML); Medlock v. Board of Trustees of University of Massachusetts, 31 Mass. App. Ct. 495, 580 N.E.2d 387 (1991) (animal care and use committee at state medical school not subject to OML).

By statutory amendment, town meetings are technically exempt from the definition of "government body." St. 1988, c. 116 § 3, amending G.L. c. 39 § 23A. However, town meetings have traditionally been open for centuries.

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C. What bodies are covered by the law?

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1. Executive branch agencies

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a. What officials are covered?

The Open Meeting Law applies only to “multiple-member” public bodies. G.L. c. 30A, § 18 (definition of “public body”). It does not apply to individual government officials, such as the governor or a mayor or police chief, nor to members of their staffs. As a consequence, such officials may meet with one another or with their staffs to discuss public business without having to comply with Open Meeting Law requirements. “Open Meeting Law Guide” (Att’y Gen’l, July 1, 2010), at 2.

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b. Are certain executive functions covered?

If the mayor, police chief, school superintendent, or other public official is a member of the City Council or School Committee or other multi-member body, that body remains subject to the Open Meeting Law.  However, the law would not extend to functions the mayor or other official performs alone.

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c. Are only certain agencies subject to the act?

Multi-member agencies that serve a public purpose are subject to the Open Meeting Law unless they are excluded. At the state level, the covered agencies specifically include the governing board or body of any authority established by the Legislature to serve a public purpose in the commonwealth or any part of the commonwealth.  At the local level, covered agencies specifically include the governing board of any housing, redevelopment or other similar authority.

Specifically excluded are committees or recess commissions of the Legislature; all bodies of the judicial branch; the Board of Bank Incorporation; the Policyholders Protective Board; and public bodies “appointed by a constitutional officer solely for the purpose of advising a constitutional officer.”  G.L. c. 30A, § 18 (definition of “public body").  By excluding public bodies appointed by and advising a “constitutional officer,” the Open Meeting Law appears to be legislatively affirming the result reached by the Supreme Judicial Court in 1992, when it ruled that the governor's appointed Executive Council, itself created under the state constitution, cannot constitutionally be subject to the Open Meeting Law. Pineo v. Executive Council, 412 Mass. 31, 586 N.E.2d 988 (1992).

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2. Legislative bodies

The governing board or body of any authority established by the Legislature to serve a public purpose in the commonwealth (or any part of the commonwealth) must comply with the Open Meeting Law.  In all other respects, however, the law does not apply to the state Legislature (formally called the “general court”), nor does it apply to the Legislature’s committees and recess commissions. G.L. c. 30A, § 18 (definition of "public body").  Municipal Town Meetings are not subject to the Open Meeting Law, nor are the warrants prepared for such Town Meetings.  G.L. c. 30A, § 18(e) (“‘meeting’ shall not include .,. a session of a town meeting convened under [G.L. c. 39, § 10] which would include the attendance by a quorum of a public body at any such session”); see also  Bratko/Hubbardson Bd. of S’men (Att’y Gen’l, Aug. 23, 2011) (“The Open Meeting Law does not govern the content of warrant articles or the procedures for annual Town Meetings.”).

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3. Courts

The judicial branch is not covered by the Open Meeting Law.  Neither are any committees or other bodies established by the judiciary. G.L. c. 30A, § 18 (definition of “public body”).

That does not mean, however, that the public has no right of access to judicial proceedings; quite the contrary. Massachusetts has a well-established tradition of open judicial proceedings. See, e.g., Cowley v. Pulsifer, 137 Mass. 392 (1884); Ottaway Newspapers Inc. v. Appeals Court, 372 Mass. 539, 546, 362 N.E.2d 1189, 1194 (1977). In addition, First Amendment principles leave little doubt that almost all criminal and civil proceedings are presumptively open to the public. See, e.g., Globe Newspaper Co. v. Superior Court for County of Norfolk, 457 U.S. 596 (1982).

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4. Nongovernmental bodies receiving public funds or benefits

If members are not governmentally elected or appointed, statute probably does not apply. See District Attorney for Northern Dist. v. Board of Trustees of Leonard Morse Hospital, 389 Mass. 729, 452 N.E.2d 208 (1983); Bello v. South Shore Hospital, 384 Mass. 770, 775, 429 N.E.2d 1011, 1015 (1981).

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5. Nongovernmental groups whose members include governmental officials

These are probably not covered, although issue may turn on membership and powers of particular body. See District Attorney for Northern Dist. v. Board of Trustees of Leonard Morse Hospital, 389 Mass. 729, 452 N.E.2d 208 (1983).

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6. Multi-state or regional bodies

Regional bodies are covered. Multi-state bodies do not appear to be covered. See G.L. c. 30A, § 18 (definition of "public body").

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7. Advisory boards and commissions, quasi-governmental entities

Subcommittees of public bodies, and any “multiple-member body created to advise or make recommendations to a public body,” are covered if they were established “to serve a public purpose.” G.L. c. 30A, § 18 (definition of “public body”). This will be true “regardless of whether their role is decision-making or advisory.” “Open Meeting Law Guide” (Att’y Gen’l, July 1, 2010). It does not matter how they were created, how they are constituted, or whether their members are elected or appointed, so long as they were established to serve a public purpose

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8. Other bodies to which governmental or public functions are delegated

The answer will probably turn on extent of delegation of government functions and method of selection of members. See District Attorney for Northern District v. Board of Trustees of Leonard Morse Hospital, 389 Mass. 729, 452 N.E.2d 208 (1983); Connelly v. School Committee of Hanover, 409 Mass. 232, 565 N.E.2d 449 (1991). Connelly v. School Committee of Hanover, 409 Mass. 232, 565 N.E. 2d 449 (1991) (school principal selection committee appointed by superintendent of schools exempt from Open Meeting Law).

Municipal Town Meetings also are not covered, nor are the warrants prepared for same.  G.L. c. 30A, § 18(e) (“‘meeting’ shall not include .,. (e) a session of a town meeting convened under [G.L. c. 39, § 10] which would include the attendance by a quorum of a public body at any such session”); see also  Bratko/Hubbardson Bd. of S’men (Att’y Gen’l, Aug. 23, 2011) (“The Open Meeting Law does not govern the content of warrant articles or the procedures for annual Town Meetings.”).

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9. Appointed as well as elected bodies

The statute applies to multi-member bodies regardless of whether their members are appointed or elected, and regardless of how the body was created. G.L. c. 30A, § 18 (definition of "public body").

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D. What constitutes a meeting subject to the law

All “meetings” of a “public body,” as those terms are defined in the Open Meeting Law, must be open to the public.  The statute defines a “meeting” as “a deliberation by a public body with respect to any matter within the body’s jurisdiction,” but carves out five specific exceptions.  A “deliberation” is defined, in turn, as “an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction.  G.L. c. 30A, § 18 (definition of “deliberation”).

The five exceptions to the definition of a meeting are the following:

(i)     An onsite inspection of a project or program by members of the public body, provided that the members do not “deliberate” at those gatherings.  In other words, they may not communicate (through words, emails, sign language, smoke signals, etc.) with each other on any public business within the body’s jurisdiction.  Since it is unlikely the inspection would be taking place if it did not relate to a matter within the board’s jurisdiction, that effectively means that public officials attending an onsite inspection may not chat among themselves about what they are observing.

(ii)   A conference, training program, social event, media event, or other public or private gathering attended by a quorum of the public body, provided, again, that the members do not “deliberate.”

(iii) A properly noticed public meeting of some other public body, when attended by a quorum of the public body in question, provided that the visiting members communicate not among themselves, but only “by open participation” regarding the matters under consideration by the host body. Again, the visiting members may not themselves deliberate at such meetings.

(iv) A meeting of a “quasi-judicial board or commission,” if the meeting is held for the “sole purpose of making a decision required in an adjudicatory proceeding brought before it.”

(v)   A Town Meeting session under G.L. c. 39, § 10, attended by a quorum of the public body.

G.L. c. 30A, § 18 (definition of “meeting”).

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1. Number that must be present

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a. Must a minimum number be present to constitute a "meeting"?

Not all communications between or among members of a public body constitute a “meeting” subject to the Open Meeting Law.  It is only when those communications rise to the level of a “deliberation” that the statute applies, and a “deliberation” occurs only if the communication is “between or among a quorum of a public body.”  G.L. c. 30A, § 18 (“deliberation”). A quorum is normally a simple majority of the members of the public body. G.L. c. 30A, § 18 (“quorum”).  In rare cases, a statute, executive order, or other authorizing provision may set a different standard for a quorum, and in such cases, the specially defined quorum applies.

However, if less than a quorum are in fact a subcommittee, the statute applies. Nigro v. Conservation Commission of Canton, 17 Mass. App. Ct. 433, 458 N.E.2d 1219 (1984) (statute applies to three-member subcommittee of seven-member commission since subcommittee was making decisions). Nevertheless, a single member of a governmental body who attends a meeting with others who are not members of the same governmental body is not a subcommittee, and therefore the OML does not apply. Pearson v. Board of Selectmen of Longmeadow, 49 Mass. App. Ct. 119, 726 N.E.2d 980 (2000).

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b. What effect does absence of a quorum have?

If a communication does not involve, either simultaneously or serially, a quorum of the public body, then there has been no “deliberation” and hence no “meeting.” In such a case, the statute does not apply.

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2. Nature of business subject to the law

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a. "Information gathering" and "fact-finding" sessions

Both “information-gathering” and “fact-finding” sessions, if attended by a quorum of a public body and relating to public business within that body’s jurisdiction, appear to be subject to the law.  See G.L. c. 30A, § 18 (definition of “deliberation”). (Prior to the 2010 revision of the Open Meeting Law, the status of such bodies was somewhat unclear.  See, e.g.,  Nigro v. Conservation Commission of Canton, 17 Mass. App. Ct. 433, 458 N.E.2d 1219 (1984).) An off-premises retreat attended by a quorum of the public body is probably subject to the law if its purpose is to address the body’s long-term vision and plans; but the same might not be true if the retreat were designed solely to resolve interpersonal issues among the group members.  The critical question to be answered in such cases is whether the public body is addressing “public business” that falls within the body’s jurisdiction.

The statute does not define “jurisdiction,” nor does it set out a test for determining whether or not certain public business falls within the body’s jurisdiction.  The Attorney General, however, has supplied the following test: “[A]s a general rule, any matter of public business on which a quorum of the public body may make a decision or recommendation would be considered a matter within the jurisdiction of the public body.”  “Open Meeting Law Guide” (Att’y Gen’l, July 1, 2010), at 3.

An explicit statutory exception exists for "on-site inspection of any project or program." G.L. c. 39, § 23A, definition of "meeting."

The law does not apply to ". . .any chance meeting, or a social meeting at which matters relating to official business are discussed so long as no final agreement is reached. No chance meeting or social meeting shall be used in circumvention of the spirit or requirements of this section . . . ." G.L. c. 39, § 23B.

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b. Deliberation toward decisions

At state level, quasi-judicial bodies sitting on adjudicatory matters may deliberate in private. G.L. c. 30A, § 11A, definition of "governmental body." Otherwise and subject to general provisions on executive sessions, deliberations must be public including those of county or municipal level quasi-judicial bodies. Yaro v. Board of Appeals of Newburyport, 10 Mass. App. Ct. 587, 410 N.E.2d 725 (1980) (local zoning board of appeals must deliberate in public). Because of special statutes, a school committee may deliberate in private when deciding teacher disciplinary cases. O'Sullivan v. School Committee of Worcester, 411 Mass. 123, 579 N.E.2d 160 (1991). Deliberations of governmental bodies are subject to the law whether or not the discussions culminate immediately in an official vote. Gerstein v. Superintendent Search Screening Committee, 405 Mass. 465, 469-70, 541 N.E.2d 984, 986-87 (1989).

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3. Electronic meetings

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a. Conference calls and video/Internet conferencing

Not authorized. Statute defines "meeting" as "corporal convening." G.L. c.39, § 23A. May in fact occasionally occur in emergencies.

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b. E-mail

An email is a "written communication." If sent to a quorum of a public body and addressing a matter of "public business within its jurisdiction," the email constitutes a prohibited deliberation under the law – even if the sender’s email does not ask the recipients to respond. G.L. c. 30A, § 18; “Open Meeting Law Guide” (Att’y Gen’l, July 1, 2010), at 3. Thus, for example, a city council member violated the Open Meeting Law when he sent an email to a quorum of his fellow council members asking whether they support a special election for a ballot question, because his act could have resulted in the council “making policy decisions outside of a public meeting.” Burke/Methuen City Council, OML 2011-35 (Att’y Gen’l, Aug 22, 2011).

An email is not a prohibited “deliberation,” however, if both of the following two conditions are met: (1) it serves merely as the vehicle for distributing a “meeting agenda, scheduling information,” other procedural matter, or “reports or documents that may be discussed at a meeting”; and (2) “no opinion of a member is expressed” in the email. G.L. c. 30A, § 18 (definition of “deliberation”).

Additionally, an email – like any other written or oral communication -- is not a prohibited “deliberation” if the communication is confined to less than a quorum of the public body.  G.L. c. 30A, § 18; “Open Meeting Law Guide” (Att’y Gen’l, July 1, 2010), at 3.  If, however, there are multiple email communications among the members of the public body, and if those communications, taken as a whole, involve a quorum of members, then a “deliberation” has probably occurred.  Id.

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c. Text messages

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d. Instant messaging

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e. Social media and online discussion boards

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E. Categories of meetings subject to the law

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1. Regular meetings

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a. Definition

"Any corporal convening and deliberation of a governmental body for which a quorum is required in order to make a decision at which any public business or public policy matter over which the governmental body has supervision, control, jurisdiction or advisory power is discussed or considered." G.L. c. 39, §  23A. At least one case tends to construe "meeting" narrowly. Medlock v. Board of Trustees of University of Massachusetts, 31 Mass. App. Ct. 495, 580 N.E.2d 387 (1991) (animal use and care committees at state medical school held not to consider public policy matters and therefore to be exempt from OML). See also Globe Newspaper Co. v. Massachusetts Bay Transportation Authority Retirement Board, 416 Mass. 1007, 622 N.E.2d 265 (1993) (records of public agency retirement board created by collective bargaining agreement are not public records).

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b. Notice

Time limit for giving notice.
Except in an emergency, notice of a meeting must be provided 48 hours in advance of the meeting, excluding Saturdays, Sundays, and legal holidays.  G.L. c. 30A, § 20(b). The same time limits and posting requirements apparently apply for adjourned or continued sessions. See Tebo v. Board of Appeals of Shrewsbury, 22 Mass. App. Ct. 618, 495 N.E.2d 892, 895 (1986).  The notice must be printed in a “legible, easily understandable format,” and it must contain the date, time, and place of the meeting, as well as “a listing of topics that the chair reasonably anticipates will be discussed at the meeting.”  G.L. c. 30A, § 20(b).

To whom notice is given.
The only requirement is posting.

Where posted.
Notice of meetings of local bodies must be filed with the municipal clerk, and also “posted in a manner conspicuously visible to the public at all hours in or on the municipal building in which the clerk’s office is located.”  G.L. c. 30A, § 20(c).

Notice of meetings of regional or district bodies must be filed and posted in each city or town within the region or district, in the same manner prescribed for the posting of notices of local bodies.  In the case of a regional school district, the secretary of the regional school district committee must file the meeting notice with the clerk of each city or town within the district, and must also post the notice in the same manner prescribed for the posting of notices of local bodies.  Id.

Notice of meetings of county bodies must be filed in the office of the county commissioners, and also “publicly posted in a manner conspicuously visible to the public at all hours” in one or more places designated by the county commissioners. Id.

Notice of meetings of state bodies must be filed with the Attorney General via website posting “in accordance with procedures established for this purpose.”  The AG may require, or permit, other methods of notice if “the attorney general determines such alternative will afford more effective notice to the public.”  Id.

Because the Open Meeting Law as revised effective 2010 requires that notice of an upcoming meeting must include a list of anticipated topics, public bodies may no longer fulfill the notice requirement by the expedient of posting a printed schedule of future meetings.

Public agenda items required.
The notice must include “a listing of topics that the chair reasonably anticipates will be discussed at the meeting.” G.L. c. 30A, § 20(b) (provision added effective 2010). The agenda items must be listed with “sufficient specificity to reasonably advise the public of the issues to be discussed at the meeting.” 940 CMR 29.03. The Attorney General’s Office appears to interpret the requirement as referring to what could be “reasonably anticipated” at the time of the posting of the meeting.  See Dufault/Sudbury Bd of S’men, OML 2011/36 (Att’y Gen., Aug 31, 2011) (no violation where new, time-sensitive, topic arose on day of meeting).

Other information required in notice
None other than date, time, and place of meeting.

Penalties and remedies for failure to give adequate notice.
If an unforeseen matter arises that was not reasonably anticipated and therefore not  included in the list of topics contained in the previously posted notice of the meeting, then “the best practice would be to postpone discussions on topics not listed on the meeting notice that are more than administrative or procedural discussions,” because “[t]he postponement of substantive discussions until such time as they may be appropriately noticed allows for transparency in a public body's proceedings….”  Nevertheless, discussion on the unanticipated topic are not prohibited outright under such circumstances.  See Dufault/Sudbury Bd of S’men, OML 2011/36 (Att’y Gen., Aug 31, 2011) (no violation where new, time-sensitive, topic arose on day of meeting).

Normally none other than possible judicial invalidation of actions taken at meeting should litigation be brought challenging lack of notice. See, e.g., G.L. c. 39, § 23B. $1,000 fine theoretically possible. G.L. c. 39 § 23B.

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c. Minutes

Minutes must include the date, time and place of the meeting, members present and absent, and record of action taken. G.L. c. 39, § 23B; c. 66, § 5A. There is no requirement that minutes include summaries of discussions or deliberations.

Minutes are public records, regardless of form, and they must be made available at the close of the meeting. Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 3. Minutes of prior open meetings, regardless of form, should be reviewed and accepted promptly, and custodians are “strongly encouraged” to waive all fees associated with producing the minutes. Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 3. The records custodian may not withhold minutes on the grounds that they have not yet been transcribed or approved (although untranscribed or unapproved minutes should be marked “unofficial”). The only exception to this rule is that minutes of executive (closed) sessions may remain secret "as long as publication may defeat the lawful purpose of the executive session." G.L. c. 39, § 23B.

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2. Special or emergency meetings

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a. Definition

"Emergency" for meeting purposes is defined as "a sudden, generally unexpected occurrence or set of circumstances demanding immediate action." G.L. c. 39, § 23A. The emergency must be of such a nature that there is not time to wait 48 hours to hold a meeting. There is no provision for "special" meetings.

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b. Notice requirements

No such provisions for emergency meetings.

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c. Minutes

The minutes must include the date, time and place of meeting, members present and absent, and record of action taken. G.L. c. 39, § 23B; c. 66, § 5A. There is no requirement that minutes include summaries of discussions or deliberations.

 

These minutes are a public record, regardless of form, and they must be made available at the close of the meeting. Minutes of prior open meetings, regardless of form, should be reviewed and accepted promptly, and custodians are “strongly encouraged” to waive all fees associated with producing the minutes. Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 3. The records custodian may not withhold minutes on the grounds that they have not yet been transcribed or approved (although untranscribed or unapproved minutes should be marked “unofficial”). Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 3. The only exception to this rule is that minutes of executive (closed) sessions may remain secret "as long as publication may defeat the lawful purpose of the executive session." G.L. c. 39, § 23B.

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3. Closed meetings or executive sessions

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a. Definition

"Any meeting or part of a meeting of a governmental body which is closed to certain persons for deliberation on certain matters." G.L. c. 39, § 23A.

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b. Notice requirements

Time limit for giving notice.
The time limit for giving notice is the same as for regular meetings — 48 hours, including Saturdays but exclusive of Sundays and legal holidays. See G.L. c. 39, § 23B.

To whom notice is given.
Posting only, although many boards also notify members and some notify the local press.

Where posted?
Same as for regular meetings.

Penalties and remedies for failure to give adequate notice.
The same as for regular meetings, that is, possible judicial invalidation of action taken at meeting and remote possibility of fine.

 

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c. Minutes

The information required is the same as for regular meetings plus the additional requirement that all votes in the executive session shall be recorded as roll call votes which shall become a part of the record of the executive session. G.L. c. 39, § 23B.

Minutes are a public record, except that the minutes of executive sessions "may remain secret as long as publication may defeat the lawful purposes of the executive session, but no longer." G.L. c. 39, § 23B. Such minutes “must be reviewed and released regularly and promptly,” with release to occur “as soon as the stated purpose for the executive session protection has ceased.” Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 4.

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d. Requirement to meet in public before closing meeting

The meeting must first be convened as an open meeting and a recorded vote taken to go into executive session. G.L. c. 39, § 23B. The vote must be a majority affirmative vote of board members present. District Attorney for Northwestern Dist. v. Board of Selectman of Sunderland, 11 Mass. App. Ct. 663, 418 N.E.2d 642 (1981) (invalidating an executive session because one affirmative vote with two abstentions did not constitute a majority). The presiding officer also must state whether body will reconvene publicly after executive session. G.L. c. 39, § 23B. A board may not enter into executive session at an emergency meeting because the prerequisite of an open meeting has not been met.The presiding officer must cite in advance the "purpose" of the proposed executive session. G.L. c. 39, § 23B.

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e. Requirement to state statutory authority for closing meetings before closure

The presiding officer must cite in advance the "purpose" of the proposed executive session. G.L. c. 39, § 23B.

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f. Tape recording requirements

None. Even if meeting is gratuitously recorded, there is no public right of access to the tape. Perryman v. School Committee of Boston, 17 Mass. App. Ct. 346, 458 N.E.2d 748 (1983).

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F. Recording/broadcast of meetings

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1. Sound recordings allowed

These are allowed, except for executive sessions or where recording would be "active interference with the conduct of the meeting." G.L. c. 39, § 23B.

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2. Photographic recordings allowed

Videotape recording is now permitted, except during an executive session, provided the equipment is in a fixed location or locations determined by the governmental body and there is no active interference with conduct of the meeting. G.L. c. 39, § 23B as amended by St. 1987, c.159. Still photography is routinely allowed.

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G. Access to meeting materials, reports and agendas

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H. Are there sanctions for noncompliance?

A 1993 amendment to the law now allows the court to impose a civil fine upon a governmental body "in an amount not greater than one thousand dollars for each meeting held in violation" of the law. G.L. c. 39, § 23B. Although a fine is allowed, it is rarely, if ever, imposed.

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The statute provides for specific exemptions. The exceptions are not to be used as a subterfuge to retreat from open to executive session. Puglisi v. School Committee of Whitman, 11 Mass. App. Ct. 142, 414 N.E.2d 613) (1981) (School committee holding public hearing on discipline of school principal went into "sham" executive session to discuss character and reputation of superintendent of school system. In fact, executive session let superintendent get in private "last word" on principal. Principal awarded back pay). See District Attorney for Northwestern Dist. v. Board of Selectmen of Sunderland, 11 Mass. App. Ct. 663, 418 N.E.2d 642, 644 (1981). At least in some circumstances, a subsequent open meeting on the same subject may in effect cure an improperly closed meeting. Pearson v. Board of Selectmen of Longmeadow, 49 Mass. App. Ct. 119, 726 N.E.2d 980 (2000); Benevolent & Protective Order of Elks, Lodge No. 65 v. Planning Board of Lawrence, 403 Mass. 531, 557-8, 531 N.E.2d 1233, 1249-50 (1988).

Executive sessions are discretionary with the governmental body, subject to the rights of affected individuals who may request an open meeting. G.L. c. 39, § 23B. Although executive sessions are not mandatory, at least one case has treated a failure to negotiate in executive session as a failure to negotiate in good faith. Board of Selectmen of Marion v. Labor Relations Commission, 7 Mass. App. Ct. 360, 388 N.E.2d 302 (1979) (finding that existence of exception for collective bargaining showed that executive session served a purpose, and the refusal to hold closed session damaged the bargaining process and could be seen as a failure to negotiate in good faith).

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A. Exemptions in the open meetings statute

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1. Character of exemptions

The statute provides for specific exemptions. The exceptions are not to be used as a subterfuge to retreat from open to executive session. Puglisi v. School Committee of Whitman, 11 Mass. App. Ct. 142, 414 N.E.2d 613) (1981) (School committee holding public hearing on discipline of school principal went into "sham" executive session to discuss character and reputation of superintendent of school system. In fact, executive session let superintendent get in private "last word" on principal. Principal awarded back pay). See District Attorney for Northwestern Dist. v. Board of Selectmen of Sunderland, 11 Mass. App. Ct. 663, 418 N.E.2d 642, 644 (1981). At least in some circumstances, a subsequent open meeting on the same subject may in effect cure an improperly closed meeting. Pearson v. Board of Selectmen of Longmeadow, 49 Mass. App. Ct. 119, 726 N.E.2d 980 (2000); Benevolent & Protective Order of Elks, Lodge No. 65 v. Planning Board of Lawrence, 403 Mass. 531, 557-8, 531 N.E.2d 1233, 1249-50 (1988).

Executive sessions are discretionary with the governmental body, subject to the rights of affected individuals who may request an open meeting. G.L. c. 39, § 23B. Although executive sessions are not mandatory, at least one case has treated a failure to negotiate in executive session as a failure to negotiate in good faith. Board of Selectmen of Marion v. Labor Relations Commission, 7 Mass. App. Ct. 360, 388 N.E.2d 302 (1979) (finding that existence of exception for collective bargaining showed that executive session served a purpose, and the refusal to hold closed session damaged the bargaining process and could be seen as a failure to negotiate in good faith).

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2. Description of each exemption

The municipal portion of the Massachusetts Open Meeting Law provides for the following nine purposes for executive sessions (G.L. c. 39, § 23B):

1. To discuss the reputation, character, physical condition or mental health rather than the professional competence of an individual, provided that the individual involved in such executive session has been notified in writing by the governmental body, at least forty-eight hours prior to the proposed executive session. Notification may be waived upon agreement of the parties. A governmental body shall hold an open meeting if the individual involved requests that the meeting be open. If an executive session is held, such individual shall have the following rights: (a) to be present at such executive session during discussions or considerations which involve that individual; (b) to have counsel or a representative of his own choosing present and attending for the purpose of advising said individual and not for the purpose of active participation in said executive session; (c) to speak in his own behalf.

2. To consider the discipline or dismissal of, or to hear complaints or charges brought against, a public officer, employee, staff member, or individual, provided that the individual involved in such executive session pursuant to this clause has been notified in writing by the governmental body at least forty-eight hours prior to the proposed executive session. Notification may be waived upon agreement of the parties. A governmental body shall hold an open meeting if the individual involved requests that the meeting be open. If an executive session is held, such individual shall have the following rights: (a) to be present at such executive session during discussions or considerations which involve that individual: (b) to have counsel or a representative of his own choosing present and attending for the purpose of advising said individual and not for the purpose of active participation; (c) to speak in his own behalf.

3. To discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the governmental body, to conduct strategy sessions in preparation for negotiations with non-union personnel, to conduct collective bargaining sessions or contract negotiations with non-union personnel.

4. To discuss the deployment of security personnel or devices.

5. To investigate charges of criminal misconduct or to discuss the filing of criminal complaints.

6. To consider the purchase, exchange, lease or value of real property, if such discussions may have a detrimental effect on the negotiating position of the governmental body and a person, firm or corporation.

7. To comply with the provisions of any general or special law or federal grant-in-aid requirements.

8. To consider and interview applicants for employment by a preliminary screening committee or a subcommittee appointed by a governmental body if an open meeting will have a detrimental effect in obtaining qualified applicants; provided, however, that this clause shall not apply to any meeting, including meetings of a preliminary screening committee or a subcommittee appointed by a governmental body, to consider and interview applicants who have passed a prior preliminary screening.

9. To meet or confer with a mediator, as defined in § 23C of Chapter 233 with respect to any litigation or decision on any public business within its jurisdiction involving another party, group or body, provided that: (a) any decision to participate in mediation shall be made in open meeting session and the parties, issues involved and purpose of the mediation shall be disclosed; and (b) no action shall be taken by any governmental body with respect to those issues which are the subject of the mediation without deliberation and approval for such action at an open meeting after such notice as may be required by this section.

Virtually identical exemptions exist under the state and county parts of the Massachusetts Open Meeting Law except that they do not include numbers 8 and 9. G.L. c. 30A, § 11A 1/2; c. 34, § 9G.

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B. Any other statutory requirements for closed or open meetings

Other statutory provisions exist for specific kinds of meetings. See e.g. G.L. c. 71, §  42 (closing hearings on dismissal of tenured teachers). See also Kurlander v. School Committee of Williamstown, 16 Mass. App. Ct. 350, 451 N.E.2d 138 (1983) (tenured teacher unsuccessfully resisted closed hearing); O'Sullivan v. School Committee of Worcester, 411 Mass. 123, 579 N.E.2d 160 (1991) (teacher not entitled to be present at school committee's disciplinary deliberations).

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C. Court mandated opening, closing

Basic court power is to set aside actions taken at improper executive sessions. See G.L. c. 39, § 23B. The Superior Court has on occasion set aside such action and ordered actions taken to be reconsidered in open session. No instance is known where a court ordered a meeting closed; however, one court has suggested that a failure to hold a closed session can constitute bad faith in collective bargaining negotiation. Board of Selectmen of Marion v. Labor Relations Commission, 7 Mass. App. Ct. 360, 388 N.E.2d 302 (1979).

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III. Meeting categories - open or closed

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A. Adjudications by administrative bodies

At state level, quasi-judicial bodies may deliberate in private. G.L. c. 30A, § 11A, definition of "Governmental Body." At county and municipal levels, deliberations must be public. Yaro v. Board of Appeals of Newburyport, 10 Mass. App. Ct. 587, 410 N.E.2d 725 (1980). All fact-finding at any level must be public whether or not hearing officer is appointed.

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1. Deliberations closed, but not fact-finding

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2. Only certain adjudications closed, i.e. under certain statutes

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B. Budget sessions

Normally open, subject to collective bargaining and land acquisition exemptions.

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C. Business and industry relations

Open unless land acquisition involved.

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D. Federal programs

Open unless federal statute provides otherwise.

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E. Financial data of public bodies

Normally open.

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

No specific exemption in general Open Meeting Law or specific case law but court likely to apply general privacy and trade secret principles. As to individual right of privacy, see G.L. c. 214, § 1B, Attorney General v. School Committee of Northampton, 375 Mass. 127, 375 N.E.2d 1188 (1978) (candidates for vacant school superintendency have right to keep fact of application private unless and until they reach semi-finalist status). As to trade secrets, see G.L. c. 4, §  7, cl. 26(g). In addition, the statutes relating to specific agencies may authorize closed discussions of trade secrets or financial information received from businesses. See e.g. G.L. c. 40D, §  5 (Mass. Industrial Development Financing Authority).

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G. Gifts, trusts and honorary degrees

Not specifically covered in statute. Normally open. However, most Massachusetts universities are private and not subject to the Open Meeting Law.

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H. Grand jury testimony by public employees

Grand juries fall under judicial branch and are not subject to Open Meeting Law. All grand jury proceedings in Massachusetts are secret. M.R. Crim. P. 5(d). WBZ-TV4 v. District Attorney for Suffolk Dist., 408 Mass. 595, 562 N.E.2d 817 (1990). It is possible that grand jury testimony will become public in course of subsequent criminal proceedings or as a result of other public disclosure. Globe Newspaper Co. v. Police Comm'r of Boston, 419 Mass. 852, 648 N.E.2d 419 (1995).

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I. Licensing examinations

Not within scope of Open Meeting Law.

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J. Litigation, pending litigation or other attorney-client privileges

There is a statutory exemption for discussions of "strategy with respect to . . . litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the governmental body." See G.L. c. 39, § 23B(3). The litigation must be actual or imminent. Doherty v. School Committee of Boston, 386 Mass. 643, 436 N.E.2d 1223 (1982). Perryman v. School Comm. of Boston, 17 Mass. App. Ct. 346, 458 N.E.2d 748, 751-2 (1983). In the absence of actual or imminent litigation, no executive session for consultation with government attorney, even if attorney-client privilege would normally apply. District Attorney for Plymouth Dist. v. Board of Selectmen of Middleborough, 395 Mass. 629, 481 N.E.2d 1128 (1985) (executive session to discuss proposed rubbish disposal contract with town counsel held improper).

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K. Negotiations and collective bargaining of public employees

Closed. See G.L. c. 39, § 23B(3).

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1. Any sessions regarding collective bargaining

Statute is not specifically limited to collective bargaining with public employees but normally public employers do not bargain with anyone else.

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2. Only those between the public employees and the public body

The statutory exemption covers both collective bargaining sessions and meetings to "discuss strategy with respect to collective bargaining . . . if an open meeting may have a detrimental effect on the bargaining . . . position of the governmental body." G.L. c. 39, §  23B(3). Amendments in 1985 and 1988 extend this exemption to cover "strategy sessions in preparation for negotiations with non-union personnel" and "contract negotiations with non-union personnel." St. 1985, c. 333. St. 1988, c. 291. The collective bargaining exception normally extends to grievance hearings called for under collective bargaining agreements. Ghiglione v. School Committee of Southbridge, 376 Mass. 70, 378 N.E.2d 984 (1978); Bartell v. Wellesley Housing Authority, 28 Mass. App. Ct. 306, 550 N.E.2d 883 (1990).

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L. Parole board meetings, or meetings involving parole board decisions

Except for individuals serving life sentences, parole hearings are not open to the public. G.L. c. 127, § l33A. 120 300:02(2), 301.01(1).

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M. Patients, discussions on individual patients

Not covered. Most hospitals in Massachusetts are private institutions. In any event, patient privacy is protected by separate statute. G.L. c. 111, § 70E.

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N. Personnel matters

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1. Interviews for public employment

Screening of applicants by a screening committee or a subcommittee of the appointing body may be and normally is closed. G.L. c. 39, § 23 B(8). Gerstein v. Superintendent Search Screening Committee, 405 Mass. 465, 471-2, 541 N.E.2d 984, 987-8 (1989). Present position of most municipalities is that only "finalists" need be identified or interviewed publicly.

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2. Disciplinary matters, performance or ethics of public employees

Disciplinary hearings are normally closed although the employee may insist they be open. G.L. c. 39, §  23B(2). Non-disciplinary discussion of a public employee's job performance should be public. G.L. c. 39, §  23B(l). Once disciplinary proceedings are complete, the minutes of any executive sessions involved should be made public. Foudy v. Amherst-Pelham Reg'l School Committee, 402 Mass. 179, 521 N.E.2d 391 (1988).

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3. Dismissal, considering dismissal of public employees

Dismissal proceedings are normally closed although the employee may insist they be open. G.L. c. 39, § 23B(2). Bartell v. Wellesley Housing Authority, 28 Mass. App. Ct. 306, 550 N.E.2d 883 (1990). As to dismissal of tenured teachers, see G.L. c. 71, § 42. Major lay-offs for budgetary reasons do not fall within exception and should be considered publicly. Doherty v. School Committee of Boston, 386 Mass. 643, 436 N.E.2d 1223 (1982).

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O. Real estate negotiations

Normally may be closed. G.L. c. 39, § 23B(6). However, closure may only occur if the purpose of the real property exception is met. Allen v. Board of Selectmen of Belmont, 58 Mass. App. Ct. 715, 792 N.E. 2d 1000 (2003) (stating that closure was not appropriate where representatives from property involved were present because there was no confidential negotiating position to protect).

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P. Security, national and/or state, of buildings, personnel or other

Discussion of "deployment of security personnel or devices" may be closed. G.L. c. 39, § 23B(4).

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Q. Students, discussions on individual students

Discussions of individual students can probably be held in executive session under general privacy principles. See G.L. c. 214, § 1B. See also strict restrictions on access to student records. G.L. c. 71, § 34D. 603 23.07(4).

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IV. Procedure for asserting right of access

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A. When to challenge

Litigation must be filed within 21 days of the date when the challenged action of the governmental body is made public. G.L. c. 39, § 23B. Normally this means within 21 days of the vote for such action. If vote was in executive session, it means within 21 days of when minutes are made public.

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

No specific provision. Can attempt declaratory judgment proceeding and ask for restraining order in Superior Court.

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2. When barred from attending

When barred from attending a public meeting, litigation must be filed within 21 days after the action to be challenged becomes public.

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3. To set aside decision

When barred from attending a public meeting, litigation to set aside decision must be filed within 21 days after the action to be challenged becomes public.

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4. For ruling on future meetings

The statute does not appear to authorize general order that future meetings be open. However, the courts have entered orders that governmental bodies shall hereafter comply with the Open Meeting Law and/or that matters considered in improper executive session be reconsidered in public.

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5. Other

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B. How to start

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1. Where to ask for ruling

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a. Administrative forum

There is no available administrative forum in sense of a quasi-judicial agency.

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b. State attorney general

1.      Submission of a complaint with the public body.  At least 30 days prior to filing a complaint with the attorney general, a written complaint must be filed with the public body.  The written complaint must explain the alleged violation of the open meeting law and must allow the public body to remedy the alleged violation.  G.L. c. 30A, § 23(b).

Open Meeting Law complaint form is available on the Attorney General’s website.  940 CMR 29.05(1).  Public bodies are required to provide members of the public with a copy of the complaint form upon request.  940 CMR 29.05(2).

The complaint must be filed within 30 days of the date of the alleged violation, or of the date the alleged violation should reasonably have been discovered.  940 CMR 29.05(3).

2.      Public Body’s Response.  Within 14 days of receiving the written complaint, the public body must send a copy of the complaint to the attorney general and must inform the attorney general of any remedial action taken.  G.L. c. 30A, § 23(b).  The Attorney General may grant additional time to the public body at its discretion.

3.      Submission of complaint with the Attorney General’s Office.  If the complainant is not satisfied with the action taken by the public body, the complainant may file a copy of the complaint and supporting materials with the Attorney General’s Office.  Filing the complaint with the Attorney General’s Office more than 90 days after the alleged Open Meeting Law violation may result in the Attorney General’s Office declining to investigate the complaint, unless an extension was granted to the public body or the complainant demonstrates good cause for the delay.

4.      Attorney General’s Investigation.  The Attorney General’s Office will review the complaint and determine whether there is a reasonable cause to believe that the Open Meeting Law has been violated.  Whenever the Attorney General has reasonable cause to believe that there has been a violation of the Open Meeting Law, it may then conduct a formal investigation, request additional information from the complainant, compel the production of documents, take oral testimony, or convene a hearing.  940 CMR 29.06.  Although regulations say the Attorney General’s Office will resolve complaints with a reasonable period of time, generally within 90 days, 940 CMR 29.05(7), the office’s form response to complaining parties in summer 2011 said the office was “short staffed” and “may take longer than … 90 days … to resolve this matter.”

5.      Remedies.  The Attorney General’s Office may resolve its investigation with or without a hearing.  940 CMR 29.07.  Where it finds that the Open Meetings Law has been unintentionally violated, the Attorney General may resolve the investigation by an information action or by formal order.  940 CMR 29.07(2).  Remedial action in such cases may involve directing the public body to comply with the law, attend a training session, or release records.  Findings of intentional violation of the Open Meeting Law may result in a civil penalty of up to $1,000 for each violation, the nullification of any action taken at the relevant meeting, or the reinstatement of an employee.  940 CMR 29.07(3).

Statute authorizes both Attorney General and local District Attorneys to bring enforcement actions, G.L. c. 39, § 23B. The level of activity by the Attorney General and various District Attorneys has varied over the years. Upon complaints by press, most District Attorneys will review facts and, if they think law was violated, will so advise the governmental body. However, Attorney General and District Attorneys have no formal enforcement powers except through courts.

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c. Court

When access is denied, filing an action in Superior Court is appropriate.

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2. Applicable time limits

There is no formal administrative review procedure. As a practical matter, complaint to District Attorney must be within a few days of asserted violation.

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3. Contents of request for ruling

There is no formal administrative review procedure. Most District Attorneys require that requests for action by them on asserted violations be in writing.

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4. How long should you wait for a response

There is no formal administrative review procedure. If the District Attorney fails to act on complaint, the 21-day period in which to file litigation continues to run.

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5. Are subsequent or concurrent measures (formal or informal) available?

Court remedy is available at any time within 21-day period.

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C. Court review of administrative decision

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1. Who may sue?

Attorney General, local District Attorney or "three or more registered voters." G.L. c. 39, §  23B. In case of county or municipal body, "registered" presumably means registered in the particular county or municipality. A decision of Single Justice of Appeals Court holds that a person who is not a registered voter has no standing to bring enforcement action. The three voter requirement will be strictly enforced. See Vining Disposal Service Inc. v. Board of Selectmen of Westford, 416 Mass. 35, 616 N.E.2d 1065 (1993) (public contract bidder alone lacks standing to challenge selectmen's alleged violation of OML).

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2. Will the court give priority to the pleading?

Generally available. Normal procedure is to issue order of notice returnable in 10 days and to schedule prompt trial. G.L. c. 39, § 23B.

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3. Pro se possibility, advisability

An individual reporter, editor, or citizen may appear pro se. However, unless also a lawyer, he or she may not represent others or appear for a corporation. Varney Enterprises Inc. v. WMF Inc., 402 Mass. 79, 520 N.E.2d 1312 (1988) (corporation may not appear through corporate officer who is not licensed attorney).

Pro se appearance in court is normally not advisable. The law in this area is becoming fairly complex and at least some judges do not particularly care for either pro se litigants or the press generally.

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4. What issues will the court address?

The court will address any claim of violation of Open Meeting Law. In past, virtually all cases have involved claims of inadequate notice and/or improper executive sessions.

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a. Open the meeting

Pre-meeting litigation is extremely rare but theoretically possible.

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b. Invalidate the decision

The court clearly has discretionary power to invalidate the decision and this has happened on occasion.

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c. Order future meetings open

The courts have entered orders that governmental bodies shall hereafter comply with the Open Meeting Law and/or that matters considered in improper executive session be reconsidered in public, but statute does not appear to authorize a general order that future meetings be open.

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5. Pleading format

Massachusetts has in substance adopted the Federal Rules of Civil Procedure. The initial pleading is the complaint. M.R. Civ. P. 7(a).

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6. Time limit for filing suit

Twenty-one days after date when action complained of "is made public." G.L. c. 39, § 23B.

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7. What court?

Superior Court for county in which defendant governmental body acts. G.L. c. 39, § 23B.

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8. Judicial remedies available

Court has specific discretionary power to invalidate any action taken at an improper meeting or executive session and to require that records of meetings be made public. G.L. c. 39, §  23B. Court also has general equitable powers to order future compliance with Law, to order improper executive session re-held in public, to order reconstruction of missing or inadequate records of meetings, and to order preparation of minutes. Courts may also order back pay in certain employment circumstances. Puglisi v. School Committee of Whitman, 11 Mass. App. Ct. 142, 414 N.E.2d 613 (1981) (employee discharged in improper executive session was awarded back pay from the date of the session to the date when the committee would make a discharge decision at a meeting in conformity with the OML).

Other remedies may be available as well. The law states that its remedial provisions are not exclusive. G.L. c. 39, § 23B; G.L. c. 66, § 17C.

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9. Availability of court costs and attorney's fees

Court costs available but nominal. The statute does not provide for awards of attorneys' fees. Pearson v. Board of Health of Chicopee, 402 Mass. 797, 525 N.E.2d 400 (1988). However, in egregious cases where governmental body's defenses are insubstantial or frivolous, court has authority to award attorneys' fees. G.L. c. 231, § 6F. Pearson, supra.

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10. Fines

A 1993 amendment allows a Court to impose a civil fine "against the government body" of up to $1,000 "for each meeting held in violation of this section." G.L. c.39, § 23B. Acts 1993, c.455. This amendment applies only to the municipal section of the OML. It has rarely, if ever, been invoked.

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11. Other penalties

None.

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D. Appealing initial court decisions

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1. Appeal routes

Normal civil appeal to Massachusetts Appeals Court. In some cases, interlocutory appeal to Single Justice of Appeals Court may be available. See G.L. c. 231, § 118.

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2. Time limits for filing appeals

Thirty days from date of Superior Court judgment. M.R. App. P. 4(a).

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3. Contact of interested amici

Amici curiae may file briefs with leave of court but are allowed to argue orally only in extraordinary circumstances. M.R. App. P. 17. Responsible press organizations are routinely granted leave to file briefs as amici. Most frequent such amici include the Massachusetts Newspaper Publishers Association and the New England Press Association.

The Reporters Committee for Freedom of the Press may also be interested in joining as an amicus before the Supreme Judicial Court.

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V. Asserting a right to comment

The law related to municipal meetings states that "[n]o person shall address a public meeting of a governmental body without permission of the presiding officer at such meeting, and all persons shall, at the request of such presiding officer, be silent." G.L. c. 39, § 23C. There are no other statutes or case law addressing this issue.

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A. Is there a right to participate in public meetings?

The OML provides no general right for a member of the public to address a governmental body.

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B. Must a commenter give notice of intentions to comment?

Not addressed.

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C. Can a public body limit comment?

Not addressed.

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D. How can a participant assert rights to comment?

Not addressed.

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E. Are there sanctions for unapproved comment?

Although the law does not include specific sanctions, a person commenting in a municipal governmental meeting without permission may be asked to withdraw from the meeting and may be escorted out by a constable if he or she refuses to leave. G.L. c. 39, § 23C.

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Appendix

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