Procedure for obtaining public records

By Ronal Madnick, director, Worcester County Chapter ACLU of Massachusetts

How to start.
1. Who receives a request?
Request must be made to custodian of record desired. Custodian means “the governmental officer or employee who in the normal course of his or her duties has access to or control of public records.” 950 CMR 32:03.
3. Contents of a written request.
a. Description of the records.
“Reasonable description” is required. 950 CMR 32:05(4). Be as specific as possible.

C. Administrative appeal.
There is an optional administrative appeal to Supervisor of Public Records in office of Secretary of State. G.L. c. 66, § 10(b). 950 CMR 32:08(2). A person denied records has the choice of such administrative appeal or immediately initiating court proceeding. Except in cases where it is known that the record holder will litigate in any event, the administrative route is often more economical and speedier.
The Supervisor has jurisdiction over appeals for non-compliance with any part of regulations including those relating to fees. 950 CMR 32:08(2).
C. Administrative appeal.
1. Time limit for filing an appeal.
Custodian of record has 10 days after receipt of written request in which to act on request. No appeal is possible until either request is refused or 10 days elapse without action. G.L. c. 66, § 10(b). An appeal to the Supervisor must be taken within 90 days thereafter. 950 CMR 32:08(2).
C. Administrative appeal.
4. Contents of appeal letter.
It is described in the statute as a “petition.” It must be in writing but can be in letter form. It must attach a copy of original request to custodian and any written response from custodian. 950 CMR 32:08(2).
b. Refuting the reasons for denial.
The letter should include a brief statement as to why record is public or, if custodian has given reason for denial, refutation of that reason.
D. Court action.
1. Who may sue?
Any person who has made written request to custodian for record and where request has been denied or not acted on for ten days. If administrative appeal is taken and custodian refuses to comply with order of Supervisor of Public Records, he may ask the district attorney or attorney general to enforce order. G.L. c. 66, § 10(b). Historically, the attorney general has not always honored such requests.
4. Issues the court will address:
a. Denial.
Yes. G.L. c. 66, 10(b), (c).
7. What court.
Superior Court. G.L. c. 66 § 10. Supreme Judicial Court theoretically has concurrent jurisdiction but will normally remand case to Superior Court.
9. Costs and attorneys fees.
Court costs are available but normally nominal. The statute does not provide for awards of attorneys fees and they are also not available under a private attorney general theory. See Pearson v. Board of Health of Chicopee, 402 Mass. 797, 525 N.E.2d 400 (1988). However, if record custodian’s defenses are insubstantial or frivolous, court has authority to award attorneys’ fees. G.L. c. 231 § 6F. Pearson, supra.
E. Appealing initial court decisions.
1. Appeal routes.
Normal civil appeal to Massachusetts Appeals Court. In some cases, interlocutory appeal to single justice of appeals court may be available. See G.L. c. 231, § 118.
3. Contact of interested amici.
Amici curiae may file briefs with leave of court but are allowed to argue orally only in extraordinary circumstances. M.R. App. P. 17. Responsible press organizations are routinely granted leave to file briefs as amici. Most frequent such amicus is Massachusetts Newspaper Publishers Association.
The Reporters Committee for Freedom of the Press may also be interested in joining as an amicus before the Supreme Judicial Court.
3. Local or municipal.
OML applies to “governmental bodies.” G.L. c. 39, § 23B. This term is defined to include “every board, commission, committee or subcommittee of any district, city, region or town.” G.L. c. 39 § 23A. Recent decisions here interpreted this definition narrowly. See Gerstein v. Superintendent Search Screening Committee, 405 Mass. 465, 541 N.E. 2d 984 (1989) (construes broadly exemption for preliminary screening committees interviewing municipal job applicants); Connelly v. School Committee of Hanover, 409 Mass. 232, 565 N.E. 2d 449 (1991). (School principal selection committee appointed by Superintendent of Schools, rather than by the School Committee, held not to be a committee of the town and therefore exempt from the OML); Medlock v. Board of Trustees of University of Massachusetts, 31 Mass. App. Ct. 495, 580 N.E. 2d 387 (1991) (Animal care and use committee at state medical school not subject to OML).
C. What bodies are covered by the law?
1. Executive branch agencies.
Included, but Massachusetts’ statute covers only multi-member bodies and therefor does not extend to governor, mayor and other chief executives when acting alone. See, i.e., G.L. c. 39, § 23A.
C. What bodies are covered by the law?
4. Nongovernmental bodies receiving public funds or benefits.
If members are not governmentally elected or appointed, statute probably does not apply. See District Attorney for Northern Dist. v. Board of Trustees of Leonard Morse Hospital, 389 Mass. 729, 452 N.E.2d 208 (1983); Bellow v. South Shore Hospital, 384 Mass. 770, 775, 429 N.E.2d 1011, 1015 (1981).
5. Nongovernmental groups whose members include governmental officials.
These are probably not covered, although issue may turn on membership and powers of particular body. See District Attorney for Northern Dist. v. Board of Trustees of Leonard Morse Hospital, 389 Mass. 729, 452 N.E.2d 208 (1983) (Will left residue of estate of inhabitant to town for hospital and provided for election of trustees by inhabitant to town for hospital and provided for election of trustees by inhabitants of town. Trustees had no other governmental powers. Trustee meetings held not subject to statute. Close case).
D. What constitutes a meeting subject to the law.
2. Nature of business subject to the law.
b. Deliberations toward decisions.
At state level, quasi-judicial bodies sitting on adjudicatory matters may deliberate in private. G.L. c. 30A, § 11A, definition of “Governmental Body.” Otherwise and subject to general provisions on executive sessions, deliberations must be public including those of county or municipal level quasi-judicial bodies. Yaro v. Board of Appeals of Newburyport, 10 Mass. App. 587, 410 N.E.2d 725 (1980) (Local zoning board of appeals must deliberate in public). Because of special statutes, a school committee may deliberate in private when deciding teacher disciplinary cases. O’Sullivan v. School Committee of Worcester, 411 Mass. 123, 579 N.E. 2d 160(1991).
I. Personnel records.
2. Disciplinary records.
Disciplinary hearings are normally closed. See, e.g., G.L. c. 39, § 23B(l). After the hearing is complete, records are normally open. See Op. Atty. Gen. May 25, 1977, p. 166.

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