2015 S.2127 An Act to improve public records

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Notes

Below are the current modifications and additions to the current law. We have tried to include the changes within the context of the existing law.

Source Documents

Chapter 4 - Section 7 - Definitions of statutory terms; statutory construction - Modified

Twenty-sixth, Public records shall mean all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose, or any person, corporation, association, partnership or other legal entity which receives or expends public funds for the payment or administration of pensions for any current or former employees of the commonwealth or any political subdivision as defined in section 1 of chapter 32, unless such materials or data fall within the following exemptions in that they are:

  • (a) specifically or by necessary implication exempted from disclosure by statute;
  • (b) related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding;
  • (c) 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;
  • (d) inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based;
  • (e) notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit;
  • (f) 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;
  • (g) trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality; but this subclause shall not apply to information submitted as required by law or as a condition of receiving a governmental contract or other benefit;
  • (h) proposals and bids to enter into any contract or agreement until the time for the opening of bids in the case of proposals or bids to be opened publicly, and until the time for the receipt of bids or proposals has expired in all other cases; and inter-agency or intra-agency communications made in connection with an evaluation process for reviewing bids or proposals, prior to a decision to enter into negotiations with or to award a contract to, a particular person;
  • (i) 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;
  • (j) 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 or any firearms identification cards issued pursuant to said chapter one hundred and forty and the names and addresses on sales or transfers of any firearms, rifles, shotguns, or machine guns or ammunition therefor, as defined in said chapter one hundred and forty and the names and addresses on said licenses or cards;
  • [There is no subclause (k).]
  • (l) 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;
  • (m) contracts for hospital or related health care services between (i) any hospital, clinic or other health care facility operated by a unit of state, county or municipal government and (ii) a health maintenance organization arrangement approved under chapter one hundred and seventy-six I, a nonprofit hospital service corporation or medical service corporation organized pursuant to chapter one hundred and seventy-six A and chapter one hundred and seventy-six B, respectively, a health insurance corporation licensed under chapter one hundred and seventy-five or any legal entity that is self insured and provides health care benefits to its employees.
  • (n) 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 (b) of section 10 (a) of section 10A. of chapter 66, is likely to jeopardize public safety safety or cyber-security.
  • (o) the home address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6.
  • (p) the name, home address and home telephone number of a family member of a commonwealth employee, contained in a record in the custody of a government agency which maintains records identifying persons as falling within the categories listed in subclause (o).
  • (q) Adoption contact information and indices therefore of the adoption contact registry established by section 31 of chapter 46.
  • (r) Information and records acquired under chapter 18C by the office of the child advocate.
  • (s) 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 required of a private entity so licensed.
  • (t) statements filed under section 20C of chapter 32.
  • (u) 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.

Any person denied access to public records may pursue the remedy provided for in section ten 10A of chapter sixty-six.

Chapter 10, Section 35DDD - Added

There shall be established and set up on the books of the commonwealth a Public Records Assistance Fund, which shall be administered by the Massachusetts office of information technology. The fund shall be credited with:

  • (i) all punitive damages assessed pursuant to paragraph (4) of subsection (d) of section 10A of chapter 66;
  • (ii) any appropriations, bond proceeds or other monies authorized or transferred by the general court and specifically designated to be credited to the fund;
  • (iii) gifts, grants and other private contributions designated to be credited to the fund;
  • (iv) all other amounts credited or transferred to the fund from any other fund or source; and
  • (v) interest or investment earnings on any such monies.

Amounts credited to the fund may be expended by the chief information officer, without further appropriation, to provide grants to municipalities to support the information technology capabilities of municipalities to foster best practices for increasing access to public records and facilitating compliance with said chapter 66.

The unexpended balance in the fund at the end of a fiscal year shall not revert to the General Fund but shall remain available for expenditure in subsequent fiscal years. No expenditure made from the fund shall cause the fund to become deficient at any point.

Chapter 66

Section 1A - Added

The supervisor of records shall:

  • (i) create educational materials or guides and may make available training to an agency or municipality in order to foster awareness and compliance with this chapter; and
  • (ii) prepare forms, guidelines and reference materials for agencies and municipalities to use and disseminate to individuals seeking access to public records to assist an individual in making an informed public records request. The supervisor of records shall make the forms, guidelines and reference materials available at no cost on a website operated by the secretary of the commonwealth. Upon request and to the extent feasible, the supervisor of public records shall assist each agency and municipality in developing best practices to facilitate compliance with this chapter and to promote access to public records.

Section 3 - Modified

The word record in this chapter shall mean any written or printed book or paper, or any photograph, microphotograph, map or plan. All written or printed public records shall be entered or recorded on paper made of linen rags and new cotton clippings, well sized with animal sizing and well finished or on one hundred per cent bond paper sized with animal glue or gelatin, and preference shall be given to paper of American manufacture marked in water line with the name of the manufacturer. All photographs, microphotographs, maps and plans which are public records shall be made of materials approved by the supervisor of records. Public records may be made by handwriting, or by typewriting, or in print, or by the photographic process, or by the microphotographic process, or by any combination of the same. When the photographic or microphotographic process, or by electronic means is used, the recording officer, in all instances where the photographic print or microphotographic film is illegible or indistinct, may make, in addition to said photographic or microphotographic record, a typewritten copy of the instrument, which copy shall be filed in a book kept for the purpose. In every such instance the recording officer shall cause cross references to be made between said photographic or microphotographic record and said typewritten record. If in the judgment of the recording officer an instrument offered for record is so illegible that a photographic or microphotographic record thereof would not be sufficiently legible, he may, in addition to the making of such record, retain the original in his custody, in which case a photographic or other attested copy thereof shall be given to the person offering the same for record, or to such person as he may designate.

Subject to the provisions of sections one and nine, a recording officer adopting a system which includes the photographic process or the microphotographic process shall thereafter cause all records made by either of said processes to be inspected at least once in every three years, correct any fading or otherwise faulty records and make report of such inspection and correction to the supervisor of records.

Section 6A - Added

(a) Every agency and municipality shall designate at least 1 employee as a records access officer. In a municipality, the municipal clerk or any person the clerk may designate, shall serve as a records access officer and the local chief executive officer or chief administrative officer, as defined in section 7 of chapter 4, may appoint additional records access officers. For the purposes of this chapter, “agency” shall mean an entity, other than a municipality, that is identified in clause Twenty-sixth of section 7 of said chapter 4 as possessing public records.

(b) A records access officer shall coordinate an agency’s or a municipality’s response to requests for access to public records and shall facilitate the resolution of such requests by the timely and thorough production of public records. Each officer shall further:

  • (i) assist persons seeking public records to identify the records sought;
  • (ii) assist the custodian of records in preserving public records in accordance with all applicable laws, rules, regulations and schedules; and
  • (iii) prepare guidelines or reference materials that enable a person seeking access to public records in the custody of the agency or municipality to make informed requests. The guidelines or reference materials shall be updated periodically and shall include a list of categories of public records maintained by the agency or municipality and a list and description of pertinent databases and record keeping systems maintained by the agency or municipality the contents of which are public records. Each agency and municipality that maintains a website shall post such guidelines or reference materials on its website.

(c) Each agency and municipality shall post in a conspicuous location at its offices and on its website, if any, the name, title, business address, business telephone number and business email address of each records access officer. The designation of a records access officer shall not be construed to prohibit other authorized employees from responding to public records requests, making public records or information available to the public or from otherwise taking actions necessary to comply with this chapter; provided, however, that such employees shall act in accordance with the law.

(d) The records access officer shall provide the public records to a requestor by electronic means unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in a usable electronic form. The records access officer shall, to the extent feasible, provide the public record in the requestor’s preferred format or, in the absence of a preferred format, in a searchable, machine readable format. The records access officer shall not be required to create a new public record in order to comply with a request. If the public record requested is available on a public website pursuant to subsection (b) of section 19, section 14C of chapter 7 or any other appropriately indexed and searchable public website, the records access officer may furnish the public record by providing reasonable assistance in locating the requested record on the public website. Any document submitted to an agency or municipality for use in deliberations by a public body shall be provided in an electronic format at the time of submission.

(e) Each records access officer of an agency shall document each request for public records submitted to the records access officer. The records access officer shall document

  • (i) the nature of the request and the date on which the request was received;
  • (ii) the date on which a response is provided to the requestor;
  • (iii) the date on which a public record is provided to the requestor;
  • (iv) the number of hours required to fulfill the request;
  • (v) fees charged to the person making the request, if any;
  • (vi) petitions submitted under clause (iv) of subsection (d) of section 10:
  • (vii) requests appealed under section 10A;
  • (viii) the time required to comply with supervisor of records orders under said section 10A; and
  • (ix) the final adjudication of any court proceedings under subsection (d) of said section 10A. Nothing in this subsection shall require a records access officer to disclose information otherwise protected from public access. The secretary of the commonwealth shall prescribe a form for recording such information and shall annually collect the information from the records access officers, post the information on a website maintained by the secretary and report the same to the clerks of the house of representatives and senate.

(f) The supervisor of records shall document requests for public records appealed to the supervisor of records by the requestor. The supervisor of records shall document:

  • (i) the date the request was submitted to the records access officer;
  • (ii) the date the records access officer responded;
  • (iii) the amount of fees charged to the requestor, if any;
  • (iv) petitions under clause (iv) of subsection (d) of section 10;
  • (v) the time required to comply with supervisor of records orders under said section 10A; and
  • (vi) the final adjudication of any court proceedings under subsection (d) of said section 10A. Nothing in this subsection shall require the supervisor to disclose information otherwise protected from public access. The secretary of the commonwealth shall prescribe a form for recording such information and shall post the information on a website maintained by the secretary.

Section 10 - Modified

Remove:

(a) Every person having custody of any public record, as defined in clause Twenty-sixth of section seven of chapter four, shall, at reasonable times and without unreasonable delay, permit it, or any segregable portion of a record which is an independent public record, to be inspected and examined by any person, under his supervision, and shall furnish one copy thereof upon payment of a reasonable fee. Every person for whom a search of public records is made shall, at the direction of the person having custody of such records, pay the actual expense of such search. The following fees shall apply to any public record in the custody of the state police, the Massachusetts bay transportation authority police or any municipal police department or fire department: for preparing and mailing a motor vehicle accident report, five dollars for not more than six pages and fifty cents for each additional page; for preparing and mailing a fire insurance report, five dollars for not more than six pages plus fifty cents for each additional page; for preparing and mailing crime, incident or miscellaneous reports, one dollar per page; for furnishing any public record, in hand, to a person requesting such records, fifty cents per page. A page shall be defined as one side of an eight and one-half inch by eleven inch sheet of paper.

(b) A custodian of a public record shall, within ten days following receipt of a request for inspection or copy of a public record, comply with such request. Such request may be delivered in hand to the office of the custodian or mailed via first class mail. If the custodian refuses or fails to comply with such a request, the person making the request may petition the supervisor of records for a determination whether the record requested is public. Upon the determination by the supervisor of records that the record is public, he shall order the custodian of the public record to comply with the person's request. If the custodian refuses or fails to comply with any such order, the supervisor of records may notify the attorney general or the appropriate district attorney thereof who may take whatever measures he deems necessary to insure compliance with the provisions of this section. The administrative remedy provided by this section shall in no way limit the availability of the administrative remedies provided by the commissioner of administration and finance with respect to any officer or employee of any agency, executive office, department or board; nor shall the administrative remedy provided by this section in any way limit the availability of judicial remedies otherwise available to any person requesting a public record. If a custodian of a public record refuses or fails to comply with the request of any person for inspection or copy of a public record or with an administrative order under this section, the supreme judicial or superior court shall have jurisdiction to order compliance.

(c) In any court proceeding pursuant to paragraph (b) there shall be a presumption that the record sought is public, and the burden shall be upon the custodian to prove with specificity the exemption which applies.

Add:

(a) A records access officer appointed pursuant to section 6A, or a designee, shall, at reasonable times and without unreasonable delay, permit inspection or furnish a copy of any public record, as defined in clause Twenty-sixth of section 7 of chapter 4, or any segregable portion of a public record, not later than 15 calendar days following the receipt of the request if:

  • (i) the request reasonably describes the public record sought;
  • (ii) the public record is within the possession, custody or control of the agency or municipality that the records access officer serves; and
  • (iii) the records access officer receives payment of a reasonable fee as set forth in subsection (d).

If the agency or municipality does not intend to permit inspection or furnish a copy of the requested record because the record does not exist or is not within the possession, custody or control of the agency or municipality or because the record is not a public record, the agency or municipality shall inform the requestor in writing within a reasonable time, not to exceed 10 calendar days; provided, however, that the written response shall include the identity, if known, of the agency or municipality who may be in possession, custody or control of the public record sought or the specific reason for any withholding, including the specific exemption or exemptions upon which the withholding is based.

(b) If the magnitude or difficulty of the request, or the receipt of multiple requests from the same requestor, unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality is unable to permit inspection or furnish a copy of a requested public record within 15 calendar days, the records access officer shall, not later than 10 calendar days following the initial receipt of a request for public records, issue a written response to the person who submitted the request. The written response shall be made via first class or electronic mail and shall include the following:

  • (i) confirmation of the receipt of the request;
  • (ii) identification of any known public records or categories of public records that the agency or municipality intends to produce and any, known records, categories of records, or any portion of a record, that the agency or municipality intends to withhold accompanied by specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based; provided, that nothing in the written response shall limit an agency’s or municipality’s ability to redact or withhold information in accordance with state or federal law;
  • (iii) identification of any public record sought that does not exist or is not within the possession, custody or control of the agency or municipality that the records access officer serves and, if known, identification of the agency or municipality who may be in possession, custody or control of the public record sought;
  • (iv) a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public record sought;
  • (v) an itemized, good faith estimate of any fees that may be charged to produce the records;
  • (vi) a reasonable time in which the agency or municipality shall produce the public records sought but this time shall not exceed 30 calendar days following the initial receipt of the request for public records unless the agency or municipality and the requestor agree, in writing, to establish a time beyond 30 calendar days of the initial receipt of the request;
  • (vii) a proposed reasonable modification of the scope of the request or an invitation to assist the person making the request for public records to modify the scope of the request in order to produce records sought more efficiently and affordably; and
  • (viii) a statement informing the requestor of the right of appeal to the supervisor of records under subsection (a) and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection (c) of section 10A.

(c) If the magnitude or difficulty of a request, or the receipt of multiple requests from the same requestor, unduly burdens the other responsibilities of the agency or municipality such that an agency or municipality is unable to complete the request within the time provided in clause (vi) of subsection (b), a records access officer may, as soon as practical and within 20 calendar days after initial receipt of the request, or within 5 calendar days after receipt of a determination by the supervisor of public records that the requested record constitutes a public record, petition the supervisor of records for an extension of the time for the agency or municipality to furnish copies of the requested record, or any portion of the requested record, that the agency or municipality has within its possession, custody or control and intends to furnish. The records access officer shall, upon submitting the petition to the supervisor of records, furnish a copy of the petition to the requestor. Upon a showing of good cause, the supervisor of records may grant a single extension not to exceed 30 calendar days. In determining whether the agency or municipality has proven good cause, the supervisor of records shall consider, but shall not be limited to considering:

  • (i) the need to search for, collect, segregate or examine records;
  • (ii) the scope of redaction required to prevent unlawful disclosure;
  • (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension;
  • (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests;
  • (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and
  • (vi) the public interest served by expeditious disclosure. If the supervisor of records determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the supervisor of records may grant an extension beyond 30 calendar days or relieve the agency or municipality of its obligation to provide copies of the records sought. The supervisor of records shall issue a written decision regarding a petition submitted by a records access officer under this subsection within 7 calendar days following receipt of the petition and shall provide the decision to the agency or municipality and the requestor and shall inform the requestor of the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court.

(d) A records access officer may charge a reasonable fee for a public record. The reasonable fee shall not exceed the actual cost of reproducing the record. Unless expressly provided for otherwise, the fee shall be determined in accordance with the following:

  • (i) the actual cost of any storage device or material provided to a person in response to a request for public records under subsection (a) may be included as part of the fee but the charge for standard black and white paper copies or printouts of records shall not exceed 5 cents per page, for both single and double-sided black and white copies or printouts;
  • (ii) if an agency is required to devote more than 4 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested, the records access officer may also include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour and an agency shall not charge for the first 4 hours of work performed; provided, however, that an agency shall not charge for time spent segregating or redacting unless such segregation or redaction is required by law or approved by the supervisor of records under clause (iv);
  • (iii) if a municipality is required to devote more than 2 hours of employee time to search for, compile, segregate, redact or reproduce a record requested, the records access officer may also include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce the record requested but the municipality shall not charge more than $25 per hour unless such rate is approved by the supervisor of records under clause (iv); provided, however, that a municipality shall not charge for the first 2 hours of work performed or time spent segregating or redacting unless such segregation or redaction is required by law or approved by the supervisor of records under clause (iv);
  • (iv) the supervisor of records may approve a petition from an agency or municipality to charge for time spent segregating or redacting, or a petition from a municipality to charge in excess of $25 per hour, if the supervisor of records determines that:
    • (1) the charge represents an actual and good faith representation by the agency or municipality to comply with the request;
    • (2) the charge is necessary such that the request could not have been prudently completed without the redaction, segregation or charge in excess of $25 per hour; and
    • (3) the charge is not designed to limit, deter or prevent access to requested public records; provided, however, that in making a determination regarding any such petition, the supervisor of records shall consider the public interest served by limiting the cost of public access to the records, the financial ability of the requestor to pay the additional or increased charges and any other relevant extenuating circumstances.; provided, further that an agency or municipality, upon submitting a petition under this clause, shall furnish a copy of the petition to the requestor; provided further, that the supervisor of records shall issue a written determination with findings regarding any such petition within 7 calendar days following receipt of the petition by the supervisor of public records; and provided further, that the supervisor of records shall provide the determination to the agency or municipality and the requestor and shall inform the requestor of the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court; and
  • (v) the records access officer may waive or reduce the amount of any fee under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee.

A records access officer shall not charge a fee for a public record unless the records access officer furnished the public record within 15 calendar days under subsection (a) or responded to the requestor in 10 calendar days under subsection (b).

Section 10A - Added

(a) If an agency or municipality fails to comply with a requirement of section 10 or issues a response the requestor believes in violation of section 10, the person who submitted the initial request for public records may petition the supervisor of records for a determination as to whether a violation has occurred. In assessing whether a violation has occurred, the supervisor of records may inspect any record or copy of a record in camera. The supervisor of records shall issue a written determination regarding any petition submitted in accordance with this section not later than 15 calendar days following receipt of the petition by the supervisor of records. Upon a determination by the supervisor of records that a violation has occurred, the supervisor of records shall order timely and appropriate relief. A requestor, aggrieved by an order issued by the supervisor of records or upon the failure of the supervisor of records to issue a timely determination, may obtain judicial review only through an action in superior court seeking relief in the nature of certiorari under section 4 of chapter 249 and as prescribed in subsection (d).

(b) If an agency or municipality refuses or fails to comply with an order issued by the supervisor of records, the supervisor of records shall notify the attorney general who, after consultation with the supervisor of records, may take whatever measures the attorney general considers necessary to ensure compliance. If the attorney general files an action to compel compliance, the action shall be filed in Suffolk superior court with respect to state agencies and, with respect to municipalities, in the superior court of the county in which the municipality is located. The attorney general shall designate an individual within the office of the attorney general to serve as a primary point of contact for the supervisor of records. In addition to any other duties the attorney general may impose, the designee shall serve as a primary point of contact within the office of the attorney general regarding notice from the supervisor of records that an agency or municipality has refused or failed to comply with an order issued by the supervisor of records.

(c) Notwithstanding the procedure in subsections (a) or (b), a requestor may initiate a civil action to enforce the requirements of this chapter. Any action under this subsection shall be filed in Suffolk superior court with respect to agencies and, with respect to municipalities, in the superior court in the county in which the municipality is located. The superior court shall have available all remedies at law or in equity; provided, however, that any damages awarded shall be consistent with subsection (d).

(d)

  • (1) In any action filed by a requestor pursuant to this section:
    • (i) the superior court shall have jurisdiction to enjoin agency or municipal action;
    • (ii) the superior court shall determine the propriety of any agency or municipal action de novo and may inspect the contents of any defendant agency or municipality record in camera;
    • (iii) the superior court shall, when feasible, expedite the proceeding;
    • (iv) a presumption shall exist that each record sought is public and the burden shall be on the defendant agency or municipality to prove, by a preponderance of the evidence, that such record or portion of the record may be withheld in accordance with state or federal law.
  • (2)
    • (A) The superior court shall award reasonable attorneys’ fees and other litigation costs reasonably incurred to the requestor in any case in which the requestor has obtained relief through a judicial order or consent decree unless:
      • (i) the supervisor of records under subsection (a) found that the agency or municipal action did not violate this chapter or the agency or municipality reasonably relied on, based on similar facts, a published opinion by the supervisor of records or the attorney general;
      • (ii) the agency or municipality reasonably relied upon a published opinion of an appellate court based on similar facts;
      • (iii) the request was designed or intended to harass or intimidate; or
      • (iv) the request was not in the public interest and made for a private or commercial purpose unrelated to disseminating information to the public about actual or alleged government activity.
    • If the superior court determines that 1 of the conditions exists under clauses (i) to (iv), inclusive, the superior court may award reasonable attorneys’ fees and other litigation costs reasonably incurred to the requestor.
    • (B) If a requestor has obtained relief in a superior court case through a voluntary or unilateral change in position by the agency or municipality and if the requestor’s claim is not insubstantial, the superior court may award reasonable attorneys’ fees and other litigation costs reasonably incurred to the requestor.
    • (C) If a requestor has obtained relief under subparagraph (A) and the superior court determines that at least 1 of the conditions exists under clauses (i) to (iv), inclusive, or subparagraph (B), whether the superior court determines that the assessment of reasonable attorneys’ fees and other litigation costs reasonably incurred are warranted or not warranted, the judge shall issue findings specifying the basis for allowing or denying those fees and costs.
  • (3) If the superior court awards reasonable attorneys’ fees and other litigation costs reasonably incurred to the requestor, it shall order the agency or municipality to waive any fee assessed under subsection (d) of section 10. If the superior court does not award reasonable attorneys’ fees and other litigation costs reasonably incurred to the requestor, it may order the agency or municipality to waive any fee assessed under said subsection (d) of said section 10. Whether the superior court determines to waive any fee assessed under said subsection (d) of said section 10, it shall issue findings specifying the basis for such decision.
  • (4) If a requestor has obtained judgment in superior court in a case under this section and has demonstrated that the defendant agency or municipality, in withholding or failing to timely furnish the requested record or any portion of the record or in assessing an unreasonable fee, did not act in good faith, the superior court shall assess punitive damages against the defendant agency or municipality in an amount not less than $1,000 nor more than $5,000, to be deposited into the Public Records Assistance Fund established in section 35DDD of chapter 10.

(e) Notwithstanding any other provision of this chapter, the attorney general may, at any time, file a complaint in Suffolk superior court with respect to agencies and, with respect to municipalities, in the superior court in the county in which the municipality is located, to ensure compliance with this chapter and may further intervene as of right in any action filed in accordance with this section. In any action filed or in which the attorney general has intervened under this subsection, paragraphs (1) and (4) of subsection (d) shall apply and any public records the court orders produced shall be provided without a fee.

Section 10B - Added

The commissioner of criminal justice information services, the department of criminal justice information services and its agents, servants and attorneys, including the keeper of the records of the firearms record bureau of the department or any licensing authority, as defined in section 121 of chapter 140, shall not disclose any records divulging or tending to divulge the names and addresses of persons who own or possess firearms, rifles, shotguns, machine guns and ammunition therefor, as defined in said section 121 of said chapter 140, and the names and addresses of persons licensed to carry or possess the same to any person, firm, corporation, entity or agency except criminal justice agencies as defined in section 167 of chapter 6 and except to the extent such information relates solely to the person making the request and is necessary to the official interests of the entity making the request.

The home address and telephone number of law enforcement, judicial, prosecutorial, department of youth services, department of children and families, department of correction and any other public safety and criminal justice system personnel, and of unelected general court personnel, shall not be public records in the custody of the employers of such personnel or the public employee retirement administration commission or any retirement board established under chapter 32 and shall not be disclosed, but such information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180 or to criminal justice agencies as defined in said section 167 of said chapter 6. The name and home address and telephone number of a family member of any such personnel shall not be public records in the custody of the employers of the foregoing persons or the public employee retirement administration commission or any retirement board established under chapter 32 and shall not be disclosed. The 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 shall not be public records in the custody of a government agency which maintains records identifying such persons as falling within such categories and shall not be disclosed.

Section 11 - Modified

Removed:

Officers in charge of a state department, county commissioners, city councils and selectmen shall, at the expense of the commonwealth, county, city or town, respectively, provide and maintain fireproof rooms, safes or vaults for the safe keeping of the public records of their department, county, city or town, other than the records in the custody of teachers of the public schools, and shall furnish such rooms with fittings of non-combustible materials only.

Added:

Public records, other than the records in the custody of teachers of the public schools, shall be stored in fireproof rooms, safes or vaults, furnished with fittings of non-combustible materials only or in buildings, vaults or file rooms that comply with National Fire Protection Association Standards, or standards promulgated by the supervisor of records, for the safe keeping of the public records.”

Section 12 - Modified

All such records shall be kept in the rooms where they are ordinarily used, and so arranged that they may be conveniently examined and referred to. When not in use, they shall be kept in the fireproof rooms, vaults or safes provided for them or buildings, vaults or file rooms that comply with the National Fire Protection Association Standards or standards promulgated by the supervisor of records.

Section 13 - Modified

Whoever is entitled to the custody of public records shall demand the same from any person unlawfully having possession of them, who shall forthwith deliver the same to him. Upon complaint of any public officer entitled to the custody of a public record, the superior court shall have jurisdiction in equity to compel any person unlawfully having such record in his possession to deliver the same to the complainant.

Section 17 - Modified

Removed:

Except as otherwise provided by law, all public records shall be kept in the custody of the person having the custody of similar records in the county, city or town to which they originally belonged, and if not in his custody shall be demanded by him of the person having possession thereof, and shall forthwith be delivered by such person to him. Whoever refuses or neglects to perform any duty required of him by this section shall be punished by a fine of not more than twenty dollars.

Added:

Except as otherwise provided by law, all public records shall be kept in the custody of the person having the custody of similar records in the county, city or town to which the records originally belonged; provided, however, that the custodian of public records may enter into a contract for the storage of records containing public record information, but no contract for the storage of public records shall be entered into if the contract prevents or unduly restricts a records access officer or custodian of records from providing or storing the records in accordance with this chapter. Records not directly in the custodian’s possession shall be considered in the custody of the custodian if subject to a contract for the storage of public records that is permitted by this section. If the custodian does not have custody of public records, the custodian shall demand delivery from any person unlawfully having possession of the records, and the records shall immediately be delivered by such person to the custodian. A person who refuses or neglects to perform any duty required by this section shall be punished by fine of not more than $20.

Section 17A - Unchanged

The records of the department of transitional assistance, relative to all public assistance, and the records of the commission for the blind relative to aid to the blind, shall be public records; provided that they shall be open to inspection only by public officials of the commonwealth, which term shall include members of the general court, representatives of the federal government and those responsible for the preparation of annual budgets for such public assistance, the making of recommendations relative to such budgets, or the approval or authorization of payments for such assistance, or for any purposes directly connected with the administration of such public assistance or with the administration of chapter 118E or with the administration of child support enforcement under chapter one hundred and nineteen A, including the use of said records in set-off debt collections under chapter sixty-two D, and including the use of said records by the department of transitional assistance, in concert with related wage reports to ascertain or confirm any fraud, abuse or improper payments to an applicant for or recipient of public assistance; and provided, further, that data from said records may be made available to representatives of the department of education and local school committees solely for the purpose of targeting school attendance areas with the largest concentrations of low income children pursuant to 20 USC 2701 et seq. and that such access shall be supervised by the department of transitional assistance and the department of education in accordance with an interagency agreement between said departments that safeguards confidentiality; and provided, further, that information relative to the record of an applicant for public assistance or a recipient thereof may be disclosed to him or his duly authorized agent; provided, however, that nothing in this section shall be construed to prohibit disclosure to or access by the bureau of special investigations to the department's records or files for the purposes of fraud detection and control. The state police, including the state police violent fugitive arrest squad, and local police departments, shall also be provided with identifying and locating information upon request from the department's records or files for the sole purpose of identifying and locating individuals wanted on default or arrest warrants. Only identifying information including, but not limited to, the name, date of birth, all pertinent addresses, telephone number and social security number of such individuals shall be made available to the state police and local police departments pursuant to this section. The commonwealth shall destroy public assistance records ten years after the discontinuance of aid granted under the provisions of chapter sixty-nine, one hundred and seventeen, one hundred and eighteen, one hundred and eighteen A, one hundred and eighteen D and one hundred and nineteen, in such manner as the commissioner or director may prescribe.

Section 17C - Unchanged

Upon proof of failure of a governmental body as defined in section eleven A of chapter thirty A, section nine F of chapter thirty-four and section twenty-three A of chapter thirty-nine, or by any member or officer thereof to carry out any of the provisions prescribed by this chapter for maintaining public records, a justice of the supreme judicial or the superior court sitting within and for the county in which such governmental body acts or, in the case of a governmental body of the commonwealth, sitting within and for any county, shall issue an appropriate order requiring such governmental body or member or officer thereof to carry out the provisions of this chapter. Such order may be sought by complaint of three or more registered voters, by the attorney general, or by the district attorney for the county in which the governmental body acts. The order of notice on the complaint shall be returnable no later than ten days after the filing thereof and the complaint shall be heard and determined on the return day or on such day thereafter as the court shall fix, having regard to the speediest possible determination of the cause consistent with the rights of the parties; provided, however, that orders with respect to any of the matters referred to in this section may be issued at any time on or after the filing of the complaint without notice when such order is necessary to fulfill the purposes of this section. In the hearing of any such complaint the burden shall be on the respondent to show by a preponderance of the evidence that the actions complained of in such complaint were in accordance with and authorized by section eleven B of chapter thirty A, by section nine G of chapter thirty-four or by section twenty-three B of chapter thirty-nine. All processes may be issued from the clerk's office in the county in which the action is brought and, except as aforesaid, shall be returnable as the court orders.

Any such order may also, when appropriate, require the records of any such meeting of a governmental body to be made a public record unless it shall have been determined by such justice that the maintenance of secrecy with respect to such records is authorized by section eleven B of chapter thirty A, by section nine G of chapter thirty-four or by section twenty-three B of chapter thirty-nine. The remedy created hereby is not exclusive, but shall be in addition to every other available remedy.

Section 17D - Unchanged

Records of the division of fisheries and wildlife in the department of fish and game known as the Massachusetts natural heritage and endangered species program data base shall not be public records; provided, however, that they shall be open for inspection by agents of the commonwealth and the federal government for the purposes of protecting and preserving species and subspecies of nongame wildlife and indigenous plants. Except as otherwise determined by the administrator of the said data base, site-specific rare species information shall be released only upon the receipt of a statement, in writing, by the recipient that he shall keep such information confidential.

Section 17E - Unchanged

(a) In this section the following words shall have the following meanings:

  • (1) Former Article 9, Article 9 of chapter 106 as in effect on June 30, 2001.
  • (2) Revised Article 9, Article 9 of said chapter 106 as in effect on or after July 1, 2001.
  • (3) Local filing office, a filing office, other than the office of the state secretary, that is designated as the proper place to file a financing statement under Section 9?401(1) of former Article 9. The term applies only with respect to a record that covers a type of collateral as to which the filing office is designated in that section as the proper place to file.
  • (4) Former Article 9 records:
    • (A) financing statements and other records that have been filed in a local filing office before July 1, 2001, and that are, or upon processing and indexing will be, reflected in the index maintained, as of June 30, 2001, by the local filing office for financing statements and other records filed in the local filing office before July 1, 2001, and
    • (B) the index as of June 30, 2001.
  • The term shall not include records presented to a local filing office for filing after June 30, 2001, whether or not the records relate to financing statements filed in the local filing office before July 1, 2001.
  • (5) Mortgage, as-extracted collateral, fixture filing, goods and fixtures have the meanings set forth in revised Article 9 for those terms.

(b) A local filing office shall not accept for filing a record presented after June 30, 2001, whether or not the record relates to a financing statement filed in the local filing office before July 1, 2001.

(c) Until July 1, 2008, each local filing office shall maintain all former Article 9 records in accordance with former Article 9. A former Article 9 record that is not reflected on the index maintained at June 30, 2001, by the local filing office shall be processed and indexed, and reflected on the index as of June 30, 2001, as soon as practicable but in any event no later than July 30, 2001.

(d) Until at least June 30, 2008, each local filing office shall respond to requests for information with respect to former Article 9 records relating to a debtor and issue certificates, in accordance with former Article 9. The fees charged for responding to requests for information relating to a debtor and issuing certificates with respect to former Article 9 records shall be the fees in effect under former Article 9 on June 30, 2001, unless a different fee is later set by the local filing office, but the different fee shall not exceed $20 for responding to a request for information relating to a debtor or $20 for issuing a certificate.

(e) After June 30, 2008, each local filing office may remove and destroy, in accordance with any then applicable record retention law of the commonwealth, all former Article 9 records, including the related index.

(f) This section shall not apply, with respect to financing statements and other records, to a filing office in which mortgages or records of mortgages on real property are required to be filed or recorded, if:

  • (1) the collateral is timber to be cut or as-extracted collateral, or
  • (2) the record is or relates to a financing statement filed as a fixture filing and the collateral is goods that are or are to become fixtures.

Section 17F - Added

A document made or received by the Massachusetts Bay Transportation Authority Retirement Board or any other legal entity, public or private, which receives funds from the Massachusetts Bay Transportation Authority for the payment or administration of pensions for any employee of the Massachusetts Bay Transportation Authority shall be considered a public record under this chapter and clause Twenty-sixth of section 7 of chapter 4.

Section 17G - Added

Notwithstanding section 6 of chapter 174A or section 6 of chapter 175A, records of the division of insurance related to homeowners insurance rate filings received or created pursuant to said section 6 of said chapter 174A and said section 6 of said chapter 175A shall be public records at the time of initial filing and thereafter. Such records shall be available to the public online within 3 business days after they are filed.

Section 19 - Added

(a) When designing or acquiring an electronic recordkeeping system or database, records access officers shall, consistent with section 17 of chapter 110G, consult with their chief executive officer, chief administrative officer or the Massachusetts office of information technology pursuant to chapter 7D to ensure, to the extent feasible, that the system or database is capable of providing data in a commonly available electronic, machine readable format. Such database designs or acquisitions shall allow for, to the extent feasible, information storage and retrieval methods that permit the segregation and retrieval of public records and redacting of exempt information in order to provide maximum public access. No agency or municipality shall enter into a contract for the storage of electronic records containing public records if the contract prevents or unduly restricts the records access officer from providing the public records in accordance with this chapter.

(b) Every agency shall provide on a searchable website electronic copies, accessible in a commonly available electronic format, of the following types of public records:

  • (i) final opinions, decisions, orders or votes from agency proceedings;
  • (ii) annual reports;
  • (iii) reports to the general court;
  • (iv) notices of regulations proposed under chapter 30A;
  • (v) notices of hearings;
  • (vi) winning bids for public contracts;
  • (vii) awards of federal, state and municipal government grants;
  • (viii) minutes of open meetings;
  • (ix) agency budgets; and
  • (x) any public record information of significant interest or which could reasonably be anticipated to be the subject of multiple requests that the agency deems appropriate to post; provided, that any agency may withhold any record or portion of a record in accordance with state or federal law.

Section 20 - Added

For requests of payroll, financial and other data residing in the centralized state accounting and payroll systems, or associated data warehouses, the comptroller shall make available guidelines on how agencies using these systems may access and disclose public records to ensure that data that is exempted or prohibited from disclosure is not wrongfully disclosed and the security of the system is maintained.

Other Sections of the Bill

SECTION 9A. Section 3 of chapter 268B of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting after the word "reports", in line 22, the following words:- ; provided, however, that the commission may make statements and reports filed with the commission available by electronic mail in a read-only format upon the written request of any individual that delivers the request by electronic mail and provides identification acceptable to the commission, including the individual’s affiliation, if any.

SECTION 10. Municipal records access officers shall, to the extent feasible, post the commonly available public record documents identified in subsection (b) of section 19 of chapter 66 of the General Laws on a website maintained by the municipality.

SECTION 12. Pursuant to section 1 of chapter 66 of the General Laws, the supervisor of records shall adopt regulations necessary to implement the changes to said chapter 66 pursuant to this act. The regulations shall be adopted not later than September 1, 2016.

SECTION 13. Notwithstanding any general or special law to the contrary, this act shall not apply to public records requests submitted under section 10 of chapter 66 of the General Laws before the effective date of this act and no obligation imposed by this act shall be enforceable or deemed relevant in any appeal pending before the supervisor of records or any court on the effective date of this act.

SECTION 13A. There shall be a working group to review and evaluate the application of subsection (f) of clause Twenty-sixth of section 7 of chapter 4 of the General Laws as it relates to law enforcement. The working group shall review determinations of the supervisor of records and judicial decisions regarding the application of said subsection (f) of said clause Twenty-sixth of said section 7 of said chapter 4 and issue findings regarding: (i) the public interest in releasing records made and kept by police departments, including arrest records; (ii) privacy and confidentiality concerns related to releasing records made and kept by police departments; and (iii) the interaction of said subsection (f) of said clause Twenty-sixth of said section 7 of said chapter 4 and the criminal offender record information system.

The working group shall consist of: the secretary of the commonwealth who shall serve as chair; the secretary of public safety and security, or a designee; the court administrator of the trial court, or a designee; 2 members of the senate, 1 of whom shall be the minority leader, or a designee; 2 members of the house of representatives, 1 of whom shall be the minority leader, or a designee; a representative of the American Civil Liberties Union of Massachusetts, Inc.; a representative of the Massachusetts Newspaper Publishers Association; a representative of the Massachusetts Chiefs of Police Association, Inc.; a representative of the State Police Commissioned Officers Association of Massachusetts, Inc.; a representative of the Massachusetts Coalition of Police, Inc.; and a representative of the Massachusetts Municipal Association, Inc..

The working group shall file a report of its findings and recommendations, along with any drafts of legislation necessary to carry those recommendations into effect, with the clerks of the senate and house of representatives not later than December 31, 2016.

SECTION 13B. Notwithstanding any general or special law to the contrary, municipalities or other governmental agencies may contract with online data service providers for the collection, storage and public dissemination of motor vehicle accident reports prepared by or submitted to law enforcement. Municipalities or other governmental agencies may charge a reasonable convenience fee for such service not to exceed $10; provided, however, that a municipality or government agency charging such a convenience fee shall make available public records from motor vehicle accident reports consistent with chapter 66 of the General Laws to a person required to submit such a report under section 26 of chapter 90 of the General Laws or individuals directly involved in the accident. Municipalities or other governmental agencies may provide reports from data service providers in an alternative format.

SECTION 13C. Notwithstanding section 15, a municipality that maintains a website shall not be required to post guidelines or reference materials on its website, as required by subsection (b) of section 6A of chapter 66 of the General Laws, until January 1, 2017.

SECTION 14. Section 17F of chapter 66 of the General Laws shall apply to any document made or received by the Massachusetts Bay Transportation Authority Retirement Board or any other legal entity, public or private, which receives funds from the Massachusetts Bay Transportation Authority for the payment or administration of pensions for any employee of the Massachusetts Bay Transportation Authority on or after the effective date of this act.

SECTION 15. Sections 1 to 6, inclusive, and 8 to 10, inclusive, shall take effect on October 1, 2016

SECTION 16. Section 7 shall take effect on July 1, 2016. The information contained in this website is for general information purposes only. The General Court provides this information as a public service and while we endeavor to keep the data accurate and current to the best of our ability, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the websi

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