Special thanks to Reporters Committee legal fellow Daniel Jeon for updating this chapter and to Robert A. Bertsche, of Prince Lobel Tye LLP, the original author of this chapter.
Partially updated September 2023
Massachusetts’ Public Records Law, codified at Chapter 66 of the Massachusetts General Laws (G.L. ch. 66), is enforced by the Office of the Secretary of the Commonwealth. It reached essentially its modern form in the mid-1970’s, although the state legislature has subsequently amended the law. The Open Meeting Law, codified at G.L. ch. 30A, was revised in 2010 and again in 2015, 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 to state and local agencies. When challenged, both statutes should 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.
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. Div. of Capital Asset Mgmt., 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 largely 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. Subsequent amendments have altered the law by lowering fees and modifying the exemptions.
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.
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." Bougas v. Chief of Police of Lexington, 371 Mass. 59, 61, 354 N.E.2d 872, 876 (1976).
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 that took effect in 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. 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.
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 6 (Sec’y of Commonwealth, Div. of Public Records, updated Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf. 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).
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 Servs, Inc. v. Registrar of Motor Vehicles, 296 Mass. 353, 356, 5 N.E.2d 545, 546 (1937); Logan v. Comm’r of Dep’t of Indus. Accidents, 68 Mass. App. Ct. 533, 534 n.3, 863 N.E.2d 559, 561 n.3; Antell v. Attorney Gen., 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). A custodian may not question the reason for a request, except: (1) when the requested records concern information that may be exempt under the public safety exemption, (2) to determine whether the requester seeks the records for a commercial purpose, or (3) to determine whether to grant a fee waiver request. See 950 CMR 32.06(2)(h).
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).
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 the state level, this basically means executive branch records, though the Massachusetts Supreme Judicial Court has held that the governor is not explicitly covered by the law and therefore can choose what records to disclose. See Lambert v. Exec. Dir. of Judicial Nominating Council, 425 Mass. 406, 409 (1997). 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 7 (Sec’y of Commonwealth, Div. of Public Records, updated Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf; see also 950 CMR 32.02, 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.
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., Att’y Gen. v. Assistant Comm’r 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 127 (1995) (district attorney’s office).
In contrast, the Massachusetts Supreme Judicial Court held that the governor is not explicitly covered under the Public Records law, and therefore can choose what records to disclose. See Lambert v. Exec. Dir. of Judicial Nominating Council, 425 Mass. 406, 409 (1997). 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). (Nevertheless, 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
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. 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. Sec’y 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, 403 Mass. at 237 n. 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).
Records of the Legislature are exempt. G.L. c. 66, § 18; Westinghouse Broad. Co. v. Sergeant-At-Arms of Gen. Court of Mass., 375 Mass. 179, 184, 375 N.E.2d 1205 (1978) (stating 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”).
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) (holding 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). To learn more about access to court records in Massachusetts, read the Massachusetts chapter of the Reporters Committee’s Open Courts Compendium.
Courts have held that 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 Coll., 445 Mass. 745, 749, 840 N.E.2d 518, 522 (2006) (holding that 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.” 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 basic test of whether the board, committee or other group is covered is whether the board is 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 Coll., 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).
The statute does cover regional bodies. 950 C.M.R. 32.02 (defining “municipalities”). The status of multi-state bodies (rare in Massachusetts) is unclear.
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. Exec. Dir. 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. Mass. Bay Transp. Auth. Retirement Bd., 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. Bd. of Bar Exam’rs, 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. Bd. of Bar Overseers, 448 Mass. 1019, 863 N.E.2d 36 (2007) (holding that 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).
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 Coll., 445 Mass. 745, 749, 840 N.E.2d 518, 522 (2006).
“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 Coll., 445 Mass. 745, 749, 840 N.E.2d 518, 522 (2006), quoting G.L. c. 66, § 10(c).
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 received by an officer or employee of any corporation or public entity of the Commonwealth,” unless exempted. Hull Mun. Lighting Plant v. Mass. Mun. 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 Cty., 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).
A records custodian may, but is not required to, create a record or respond to a prospective request. Guide to Mass. Pub. Recs. Law at 8 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf.
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). The Attorney General has noted that the PRL applies to “all Massachusetts government records, regardless of form, and regardless of the location of the records.” Guide to Mass. Pub. Recs. Law at 41 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf.
No such limitation. See G.L. c. 66, § 10(a); 950 CMR 32.05(6).
The Massachusetts Public Records Law does not distinguish between paper and electronic records, and “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 Mass. Pub. Records Law at 41 (Sec’y of State, rev. Mar. 2020, https://www.sec.state.ma.us/pre/prepdf/guide.pdf. Custodians should provide public records in electronic format unless it is not available in electronic form or the requester cannot receive or access it electronically. Id. If possible, the record should be produced in the requester’s preferred format. Id.
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.
Extracting data from a database is not the creation of a new record. Guide to Mass. Pub. Recs. Law at 9 (Sec’y of State, rev. Mar. 2020); 950 C.M.R. 32.07(1)(f). Agencies therefore cannot deny requests for data that exists in a database because it would be creating a new record. Id. “To do so would deny access to information that does exist at the time of the request, though not in a form easily accessible by the requester.” Id.
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.
Email 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. Email should be printed and stored in paper form, but certain types of email may be stored electronically.
A common issue with email records relates to deletion of email. Even if a custodian claims that an email message was deleted, backup copies are often retained, and these records remain subject to disclosure regardless of the intent to delete the message. Email 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 email (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 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.
“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.
Custodians may, but are not required to, create new records to respond to a request. Guide to Mass. Pub. Recs. Law at 8 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf.
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).
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:
Massachusetts Trial Courts Information Center. http://www.ma-trialcourts.org/tcic/welcome.jsp Massachusetts appellate courts. http://www.ma-appellatecourts.org/search.php
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
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
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
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.
Email 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. Email should be printed and stored in paper form, but certain types of email may be stored electronically.
A common issue with email records relates to deletion of email. Even if a custodian claims that an email message was deleted, backup copies are often retained, and these records remain subject to disclosure regardless of the intent to delete the message. Email 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 email (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 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.
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). The Attorney General has opined that emails “made or received in an individual’s capacity as a government employee” must be disclosed. Guide to Mass. Pub. Recs. Law at 9 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf. 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.
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 “the law provides that all information made or received by a public entity, regardless of the manner in which it exists, constitutes ‘public records.’”.” Guide to Mass. Pub. Recs. Law at 9 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf. 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.
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.
Custodians may, but are not required to, create new records to respond to a request. Guide to Mass. Pub. Recs. Law at 8 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf.
Custodians cannot assess fees for the time spent segregating and redacting records, unless segregation and redaction are required by law or approved by the Supervisor of Records. G.L. c. 66, § 10(d); 950 CMR 32.07(2)(d). “Segregation” refers to the time taken to review and determine which records should be redacted or withheld pursuant to law; “redaction” refers to deleting parts of records that are legally exempt from disclosure. 950 CMR 32.02.
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 Bd., 388 Mass. 427, 436 (1983); Attorney Gen. 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).
Agencies cannot charge for the first four hours spent responding to a request. 950 CMR 32.07(2)(l). Agencies may not charge more than $25 per hour spent responding to a request. Id.
Municipalities with a population over 20,000 may not assess fees for the first two hours spent responding to a request; those with fewer than 20,000 may charge for the first two hours. 950 CMR 32.07(2)(m). A municipality’s records custodian may not charge more than $25 per hour for the cost of complying with a records request unless approved by the Supervisor. Id. Except where otherwise provided by statute, fees are not more than 5 cents per page for either single and double-sided black and white paper copies or printouts. 950 CMR 32.07(2). The requester may be required to pay the “actual cost” of reproduction if copies are not susceptible to ordinary means of reproduction, such as photographs or computer tapes. 950 CMR 32.07(2)(h); Guide to Mass. Pub. Recs. Law at 11 (Sec’y of State, rev. Mar. 2020).
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).
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). 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 32.02. “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 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) or to organize files. The Records Management Unit provides records management services and outreach to ensure all record keeping programs meet state standards. Guide to Mass. Pub. Recs. Law at 34 (Sec’y of State, rev. Mar. 2020, https://www.sec.state.ma.us/pre/prepdf/guide.pdf. 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 32.07(1)(a). Except where otherwise provided by statute, fees are not more than 5 cents per page for either single and double-sided black and white paper copies or printouts. 950 CMR 32.07(2). The requester may be required to pay the “actual cost” of reproduction if copies are not susceptible to ordinary means of reproduction, such as photographs or computer tapes. 950 CMR 32.07(2)(h); Guide to Mass. Pub. Recs. Law at 11 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf.
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). Generally, custodians cannot charge more than $25 per hour; they must petition the Supervisor for permission to charge more. Guide to Mass. Pub. Recs. Law at 41 (Sec’y of State, rev. Mar. 2020, https://www.sec.state.ma.us/pre/prepdf/guide.pdf. If a requester wishes to review the records in the custodian’s office but does not need copies, they may be charged the fees for a custodian’s time in searching for and redacting relevant records. Id.
Waiver is appropriate if disclosure is in the public interest, the request is not primarily in the requester’s commercial interest or the requester cannot pay for the full amount of reasonable fees. 950 CMR 32.07(2)(k). The Secretary of State’s public guidelines state that “[a]ll agencies and municipalities are strongly urged to waive the fees associated with access to public records.” Guide to Mass. Pub. Recs. Law at 41 (Sec’y of State, rev. Mar. 2020). It is not within the Supervisor of Public Records' enumerated powers to require such a waiver. See Id. at 9.
Records custodians must provide an itemized, written, good faith estimate of the expected fee within ten business days. 950 CMR 32.07(2)(b). Custodians may deny access to records request if there are any unpaid fees. 950 CMR 32.07(2)(n).
Black and white paper copies of printouts may not exceed 5 cents per page. 950 CMR 32.07(2)(e). The custodian is required to develop a program for segregating responsive electronic data from exempt data and only actual costs may be charged. SPR Bulletin 4-96, at 2. The fee may not include costs expended to develop the database, input data, create the original records 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).
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.” Guide to Mass. Pub. Recs. Law at 11 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf; 950 CMR 32.06(1)(f).
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.
The Supervisor of Public Records may notify the Attorney General of a case of noncompliance. G.L. c. 66, § 10A(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, which can include filing an action to compel compliance in Superior Court. G.L. c. 66, § 10A(b), (d).
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.
Division of Public Records and Supervisor of Public Records.
There are no sanctions in the law.
Custodians must report to the Secretary certain information regarding public records requests, such as the nature of the request, date of the request and response, the fees assessed, and any use of administrative or judicial remedies. G.L. c. 66, § 6A(e).
Records should be maintained according to the Statewide Records Retention Schedule and Municipal Records Retention Manual, available here: https://www.sec.state.ma.us/arc/arcrmu/rmuidx.htm. The Records Conservation Board created the Electronic Records Management Guidelines to assist custodians with maintenance, available at: http://www.sec.state.ma.us/arc/arcpdf/Electronic_Records_Guidelines.pdf.It is the responsibility of the government employee who create, receive, and maintain public records to ensure that they are kept safely and available to the public.
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 Gen. v. Assistant Comm’r of the Real Prop. Dep’t of Boston, 380 Mass. 623, 625 (1980); Attorney Gen. v. Bd. 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. 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, 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.” G.L. c. 66, § 10(a); 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).
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. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625, 404 N.E.2d 1254, 1256 (1980); Attorney Gen. v. Assessors of Woburn, 375 Mass. 430, 378 N.E.2d 45 (1978).
A 2009 version of a publication from the Secretary of the Commonwealth described all exemptions generally as being “discretionary to the records custodian” (Guide to Mass. Pub. Records Law (Sec’y of Comm., revised March 2009), https://www.brooklinema.gov/DocumentCenter/View/337/Town-Counsel-Public-Records-Guide-PDF, “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 Gen. 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. Sch. Comm. of Braintree, 395 Mass. 861, 862 n. 3 (1985); Gen. 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 Ret. Bd., 388 Mass. 427, 433 n. 11, 446 N.E.2d 1051, 1055, n. 11 (1983) (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 Prop. 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 Ret. Bd., 388 Mass. at 432-33 (1983).
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.
(a) Statutory exemptions: “specifically or by necessary implication exempted from disclosure by statute.” See Attorney Gen. v. Collector of Lynn, 377 Mass. at 154 (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.
(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 at 16 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf . 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. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf. 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. Comm’r 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 or her medical condition. Id. (“indirect identification”); see also Globe Newspaper Co., 388 Mass. at 438; Wakefield Teachers Assn. v. Sch. 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. Wakefield Teachers Ass’n v. Sch. Comm. of Wakefield, 431 Mass. 792, 798 (2000); Connolly v. Bromery, 15 Mass. App. Ct. 661, 664 (1983). 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. Wakefield Teachers Ass’n, 341 Mass. at 799.
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. This includes information like marital status, paternity, substance abuse, government assistance, or family disputes. Att’y Gen. v. Assistant Comm’r of the Real Prop. Dep’t of Boston, 370 Mass. 623, 625 (1980). If such an invasion of privacy is at issue, then the analysis proceeds to whether the public interest in disclosure outweighs the privacy interest. 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 Gen. v. Assistant Comm'r of Real Prop. 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) (stating 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. Comm’r of Dep’t of Indus. Accidents, 67 Mass. App. Ct. 428, 434 (2006), quoted in Globe Newspaper Co. v. Exec. Office of Admin. & Fin., 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 addresses 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 Publ’g 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 Comm’r of Real Property Dep’t, 380 Mass. at 626, 404 N.E.2d at 1256 (1980); and “what its public servants are paid,” Hastings, 374 Mass. at 818, 375 N.E.2d at 304.
(d) Deliberative process: “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. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n. 8, 526 N.E.2d 1261, 1265 n. 8 (1988). Thus, factual reports that are reasonably complete, even if labeled as opinions or conclusions, are not exempt under this exemption. See Moore-McCormack Lines, Inc. v. I.T.O. Corp. of Baltimore, 508 F.2d 945, 948 (4th Cir. 1974); Guide to Massachusetts Public Records Law at 20 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf.
(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 Cty., 443 Mass. at 594, 823 N.E.2d at 381-82 (2005).
(f) Secret investigatory materials: “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 only allows withholding of material that “could compromise investigative efforts if disclosed.” Guide to Mass. Pub. Records Law at 21 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf. It “does not . . . create a blanket exemption for all records that investigative officials create or maintain.” Id.; Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. at 512; WBZ-TV4 v. Dist. Attorney for the Suffolk Dist., 408 Mass. 595, 603 (1990).
The custodian must show disclosure will prejudice investigative efforts. Id. Generally, 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). Id. Second, it covers information that would reveal “confidential investigative techniques” the disclosure of which would prejudice future law enforcement efforts (applicable indefinitely). Id. at 20; 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 Ret. Bd., 388 Mass. 427, 438 (1983) (defining “identifying details” and “grave risk of indirect identification”). 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 at 22 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf.
(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 once 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 Mass. Pub. Records Law at 24 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf.
(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 Auth., 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, §§ 121-131P (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 Mass. Pub. Records Law (Sec’y of State, rev. Jan. 2017), at p. 26. 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. Mass. Corr. Legal Servs. v. Comm'r of Corr., 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 [ch. 176] I, a non-profit hospital service corporation or medical service corporation organized pursuant to [ch. 176] A and [ch. 176] B, respectively, a health insurance corporation licensed under [ch. 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, 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, cyber security 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 (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security.” 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 Mass. Pub. Records Law (Sec’y of State, rev. Jan. 2017), at 27. 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, personal email 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, personal email address, and home telephone numbers.
(p) Names and home address information of public employees’ family members: “the name, home address, personal email 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, email address, 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: “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.”
(t) Public retirement board records: “statements filed under section 20C of chapter 32.” The Public Employee Retirement Administration Commission receives statements of financial interest from members of public retirement boards. Those records are exempt.
(u) University of Massachusetts research: “trade secrets or other proprietary information of the University of Massachusetts, including trade secrets or proprietary information provided to the University by research sponsors or private concerns.” Exempts certain records held by the University of Massachusetts.
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. Capital facility construction project records. Not available to the public. G.L. c. 30, § 39R.
10. Census records. Street lists, identifying all known inhabitants 17 years of age or older of a given city or town, are prepared annually by city and town clerks. G.L. c. 51, §§ 6-7. This list is also normally available electronically.
11. 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.
12. Conflict of interest, request for an opinion. G.L. c. 268A, § 22.
13. Confidential communications to sexual assault and domestic violence counselors. Privilege includes any written records of such communications. G.L. c. 233, § 20J.
14. 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).
15. Criminal Offender Record Information. G.L. c. 6, § 167.
16. Delinquency, sealing by commissioner of probation. G.L. c. 276, § 100B.
17. Department of Social Services, central registry. Information related to individual children is confidential. G.L. c. 119, § 51F.
18. 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.
19. 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), 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).
20. Drug addiction treatment records. G.L. c. 111E, §18.
21. Employment agencies. Information related to employment agency licensing violations is confidential. G.L. c. 140 § 46R.
22. 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.
23. 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.
24. 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.
25. 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, § 10b.
26. Gas and electric affiliated company records. G.L. c. 164, § 85.
27. Genetically linked diseases, testing records. G.L. c. 76, § 15B.
28. 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.
29. 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.
30. 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.
31. 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).
32. 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, § 10B.
33. 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).
34. Hospital records. Individual patient records are exempt. G.L. c. 111, § 70. Most Massachusetts hospitals are private.
35. Hospitals, reports of staff privilege revocation. Confidential. G.L. c. 111, § 53B.
36. 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).
37. Inspector General investigations. Records from the office are not considered public records. G.L. c. 12A, § 13.
38. 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).
39. Juvenile delinquency court records. G.L. c. 119, § 60A.
40. Lawyer disciplinary records. Normally confidential unless public reprimand, suspension, or disbarment results. Supreme Judicial Court Rule 4:01, §§ 4, 20.
41. 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.
42. Legislature. The Public Records Act does not apply to the Legislature. G.L. c. 66, § 18.
43. Library circulation records. G.L. c. 78, § 7.
44. Malignant disease reports. G.L. c. 111, § 111B.
45. Massachusetts Commission Against Discrimination investigatory files (including position statement). G.L. c. 151B, § 5.
46. 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.
47. 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.ehs.state.ma.us/Profiles/Pages/FindAPhysician.aspx or by calling the Massachusetts Board of Registration in Medicine at 617-654-9830.
48. Mental health facilities records. G.L. c. 123, § 36.
49. Native American burial site records. G.L. c. 9, § 26A(5).
50. Natural heritage programs database. G.L. c. 66, § 17D.
51. 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.
52. Patient records confidentiality; medical and mental health facilities. G.L. c. 111. § 70E.
53. Protective Services records, aged persons. G.L. c. 19A, § 23.
54. 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.
55. 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.
56. Public assistance, Wage Reporting System information. G.L. c. 62E, § 8.
57. Rape reports. Reports of rape and sexual assault are exempt. G.L. c. 41, § 97D.
58. Security breach reports created pursuant to G.L. c. 93H are subject to the Public Records Law and its exemptions. See G.L. c. 93H, § 4.
59. Sex offender registry information. G.L. c. 6, §178I.
60. Social worker-client privilege. Includes records of communications and services of licensed or state social worker. G.L. c. 112, § 135A. Disclosure is appropriate only in express circumstances.
61. 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.
62. Street lists, children ages 3-17, court order granting protection. G.L., c. 51, § 4(a), (d).
63. Student records. Open to inspection by parent or guardian. G.L. c. 71, §§ 34D, 34E.
64. 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.
65. Vocational rehabilitation records. G.L. c. 6, § 84.
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. Div. of Capital Asset Mgmt., 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.
2. Attorney work product.
In DaRosa v. City of New Bedford, 471 Mass. 446, 448, 30 N.E.3d 790, 793–94 (2015), Massachusetts’ highest court concluded that “opinion” work product “that was ‘prepared in anticipation of litigation or for trial by or for a party or that party's representative’ falls within the scope of exemption (d ) and therefore falls outside the definition of ‘public records’ under G.L. c. 4, § 7, Twenty-sixth.” The court also concluded “that ‘fact’ work product . . . that was prepared in anticipation of litigation or trial falls within the scope of exemption (d ), and therefore falls outside the definition of ‘public records,’ where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions.” Id.
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. Sec’y of Exec. Office of Human Servs., 403 Mass. 230, 239 n.8, 526 N.E,.2d 1261, 1266 n.8 (1988).
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).