The below is what we have learned in the process of reading the State's Public Records Law and guidance about the law; also gleaned by watching others make such requests. This is our best understanding and it may be flawed, so do read up on your own (here is the Guide to Public Record Law including the State Statute).We publish the below here despite its possible flaws because we know enough instances now of citizens making Public Records Requests where we believe the response they received may have been insufficient. Requesters did not object simply because they did not know what to expect.
The below covers the weak areas we have seen in these responses... and more. We hope it is enough information to help you get started, make you aware of the process, and keep your request rolling along to a happy ending.
MAKING YOUR REQUEST. You may make your request verbally (in person, not by phone) or in writing (letter, fax or email). We recommend in writing because then there is a better chance of your request being clear to everyone, and it creates a paper trail.
DO YOU NEED TO SAY WHY YOU WANT THE RECORDS? No! And no Records Custodian may even ASK you why. The possible exception to this is if the request falls under State exemption (n), which has to do with preventing terrorism.
THE REPLY FROM THE RECORD CUSTODIAN HOLDING THE RECORDS. The reply must come within 10 calendar (not working, but calendar) days and must be in writing. If you are denied the records, the Record Custodian must cite for you the reason for the denial, referring to the statutory exemptions permitted by the State, which are lettered (a) through (q).
A GOOD FAITH ESTIMATE IS GIVEN. If you are to be granted access to the records, and the custodian wishes to charge you for them, he/she must give you a "good faith estimate" of what it would cost you to obtain them in their reply if the total cost exceeds $10. Included in this total may be:
1. LABOR: The time it takes to collect and review the requested records for redaction according to the permitted exclusions. The rate of pay of the lowest paid employee capable of doing the job is the scale used, and no benefits or other mark-ups to their pay scale are permitted. The Supervisor of Records says that this is almost always primarily a low-level administrative task.
2. COPYING: A per-page cost may be charged at the maximum rate of $0.25/page for photocopies. You may also simply inspect the records, without any copying fee.
WAIVING OF FEES. The Massachusetts Secretary of State says, "In the interest of open government, all records custodians are strongly urged to waive the fees associated with access to public records, but are not required to do so under the law." Sometimes fees are waived; sometimes not.
GETTING THE DOCUMENTS. Expect that the documents should be made available in a "reasonable" period of time. Documents MUST be given in their original format, and this includes electronic documents.
HAT IF SOMETHING GOES WRONG? There are several reasons you may want to appeal the Record Custodian's response, including:
• The response doesn't come within 10 calendar days
• The response arrived, but is inadequate
• You feel you are being denied a document improperly
• The cost is too high
UNHAPPY WITH THE RESPONSE? You may appeal the response to the State. Write to the Supervisor of Records below, sending a copy of your original document request (see? this is where a written initial request comes in handy!), a copy of the Record Custodian's response (if there was one), your request for the Supervisor of Records to open an appeal, and the reason(s) for your request. Your appeal must be made within the 90 days following your original document request.Mr. Alan Cote
Supervisor of Records
Secretary of the Commonwealth of Massachusetts
Public Records Division
One Ashburton Place
Room 1719
Boston, MA 02108
Fax: (617) 742-4528
THE APPEAL PROCESS. If your request for an appeal is granted, your case will be assigned a lawyer in the Supervisor's office who will do the leg work and submit a draft finding to the Supervisor for his examination and approval. If the finding is that the Records Custodian followed the law, then the appeal will be satisfied and the Records Custodian will be notified of this. If the finding is they did not follow the law, then orders will be sent to the Records Custodian about how to correct their error(s). In either case, you will be copied on the finding/orders. This will not take a short time... they are very busy and understaffed. You will have to be patient.
ENFORCEMENT OF THE ORDERS, ETC. If you are unhappy at any point during the appeal process, and/or the Record Custodian refuses to comply with the State's orders, you may seek enforcement of the Supervisor's orders. You have three options there: jurisdiction for enforcement is with the Attorney General, the District Attorney, or Superior Court. The Supervisor of Records' office recommends Superior Court for the best outcome for the person who requested the record. What does that Superior Court involve? We don't know -- we haven't witnessed that yet!
Interested in making a request of Federal officials? Here is information on FOIA (Freedom of Information Act), the Federal equivalent to Massachusetts' Public Records Law.
How to Make a FOIA Request from the National Security Archive at George Washington University: /www.gwu.edu/~nsarchiv/nsa/foia/howtofoia.html
Making a FOIA Request from the US Department of Justice: www.usdoj.gov/oip/04_1.html
