Massachusetts Freedom of Information Act

What is the Massachusetts Freedom of Information Act?

The Freedom of Information Act (FOIA) is a law that grants members of the public the right to inspect and make copies of all government records, except those that are exempt from public disclosure. The FOIA ensures the openness of government activities. In Massachusetts, laws mandating the release of public records to residents have evolved since 1851. A major amendment to the law occurred in 1973 when the legislature revised the definition of public records to all records collected and maintained by government agencies. The freedom of information law in Massachusetts is known as the Massachusetts Public Records Law. The Massachusetts Public Records Law is contained in Chapter 66 of the Massachusetts General Laws and enforced by the Secretary of the Commonwealth of Massachusetts. The Massachusetts Public Records Law states that every person has a right to inspect and make copies of public records maintained by government entities in the state.

What is Covered Under the Massachusetts Freedom of Information Act?

According to Chapter 4 of the Massachusetts General Law, § 7(26), public records are defined as books, papers, maps, photographs, recorded tapes made or received by officers of government entities in the course of official duties. Public records include financial records, documentary materials, correspondence tax returns or bills, brochures, appraisals, license applications, etc. These may be in physical or electronic forms such as computer files, emails, videos, voicemail messages, CDs/DVDs, and USB drives maintained by government entities in the state. Government entities include agencies or municipalities such as cities, towns, or similar authorities. The law defines agencies as corporations, associations, partnerships, or entities that receive or use public funds for their official operations. Agencies also include executive offices of the government, departments, boards, commissions, bureaus, divisions, or authorities of the Commonwealth of Massachusetts.

What Records are Exempt from the Freedom of Information Act in Massachusetts?

The Massachusetts Public Records Law exempts some records from public disclosure. Where non-exempt information is in the same document as exempt information, the exempt information shall be redacted before the document is disclosed. Records exempt from public disclosure in the Commonwealth of Massachusetts include:

• Information exempt or restricted from disclosure by a federal or state statute.
• Documents related to the internal personnel rules and practices of the government agency that maintains the documents: Government agencies do not need to disclose details of their internal personnel operations. For record access custodians to withhold records based on this exemption, they must demonstrate that the records relate solely to the internal personnel operations of the agency. They must also demonstrate that disclosing the information will inhibit necessary government functions in the concerned agency.
• Privacy exemption: This applies to personnel and medical files or information. It also applies to other materials or data about named individuals. The disclosure of this information will constitute an unwarranted invasion of personal privacy. However, a record is not exempt if it does not disclose the identities of the named individuals.
• Deliberative process exemption: Inter-agency and intra-agency memoranda or policy positions being developed by an agency shall not be subject to disclosure. The reason for this exemption is to avoid the disclosure of details that could compromise a deliberative process if they are disclosed before a designated time. However, factual studies and reports developed from these memoranda or policy positions may be released to the public.
• Personal notes and other personal documents prepared by an employee, but not maintained as files on the agency.
• Investigation records exemption: Investigation records are exempted to avoid a compromise of investigative processes and efforts of the officials involved if disclosure may alert suspects of the activities of law enforcement officers.
• Trade secrets or commercial/financial information voluntarily released to a government agency privately: A government agency shall not disclose confidential business information and trade secrets voluntarily released to them to aid the process of the formulation of government policy. However, business information required to be submitted to the government, or those submitted as a condition to receive contracts or benefits from the government may be disclosed.

How Do I File a Massachusetts Freedom of Information Act Request?

A person seeking to obtain a public record may send a written request or completed request form (if available) to the agency with custody of the record. The written request may be sent to the record access officer by mail, fax, or email. To get the contact details of the state agency maintaining public records of interest, visit the Massachusetts State Organizations website online. The Code of Massachusetts Regulations gives no strict regulations concerning how a FOIA request should be written. However, a requester will need to provide a reasonable description of the record they wish to inspect or obtain copies of. The Massachusetts Public Records law does not require a record requester to give any reason for making a request, but they must state whether the public record request is for commercial use. In addition, requesters are not required to identify themselves before obtaining copies of requested documents.

Anyone may also visit the office of a record custodian to request a public record in person. For instance, a requester who wishes to file a FOIA request to the Alcoholic Beverages Control Commission in person may visit the following address between 9:00 am and 5:00 pm, Mondays through Fridays:

Alcoholic Beverages Control Commission
95 Fourth Street, Suite 3
Chelsea, MA 02150-2358
Phone: (617) 727-3040

Also, a requester who wishes to file a FOIA request to the Board of Registration of Social Workers in person may visit the following address and make an in-person request:

Board of Registration of Social Workers
1000 Washington Street,
Suite 710
Boston, MA 02118
Phone: (617) 701-8681

What is the Cost of a Freedom of Information Act Request in Massachusetts?

The Code of Massachusetts Regulation (CMR), 950, 32.07 authorizes record access officers in the state to charge reasonable fees for producing public records. However, some records are made available freely for public inspection. The fee charged by record access officers shall not exceed the actual cost of reproducing the records. In addition, the Massachusetts Code of Regulation does not allow record access officers to charge fees for the time spent redacting or segregating records. However, the code allows record access officers to charge fees for redaction and segregation of records if such redaction or segregation is required by law or approved by the Supervisor of Records through a petition. They shall also not charge a fee for the first one hour of searching for requested records. For records that will require fees, a record access officer shall provide a written estimate of the fees to be charged and send it to the requester.

According to the CMR, the fees charged by record access officers for printing black and white paper copies of records shall not exceed 5 cents per page. This cost applies to both single and double-sided black and white copies or printouts. A record access officer shall not charge copying fees for electronic copies or copies of records sent to a requester via facsimile. Record access custodians may charge fees for the actual cost of a storage device or material used to copy public records meant to be sent to a requester. Record access officers shall not charge searching fees greater than the lowest hourly rate of the staff compiling, segregating, redacting, and reproducing a requested record. They shall also not charge fees more than $25 per hour for processes involved in producing the public records.

For requests required to be sent by mail, the record access officer shall include the actual postage costs among the fees itemized for the requester. Records access officers in the state may waive or reduce request fees under certain conditions, such as:

• When the disclosure of the document requested is in the public interest
• When it may be proven that the requestor lacks the financial ability to pay the full amount charged for the production of the document(s)
• When the record request is not purposed for any commercial use

How Long Does it Take to Respond to a Freedom of Information Act Request in Massachusetts?

Record access officers in Massachusetts are required to respond to FOIA requests as soon as they receive applications. If fees apply, they are to inform the requesters by email of the necessary fees to search and produce copies of the records requested. On the receipt of the payment, they shall send copies of the requested public records to the requester within ten business days. In the situation of a public record request denial, a requester may petition the Massachusetts Supervisor of Public Records in writing. The petition may be sent by mail using the following address:

Supervisor of Records
Division of Public Records
Office of the Secretary of the Commonwealth
One Ashburton Place, Room 1719
Boston, MA 02108

They may also send the petition by email. Only FOIA requests made in writing may be referenced as a basis for an appeal to the Records Supervisor. FOIA requests made orally can not be referenced as a basis for an appeal. However, they are acceptable to request public records. A petition to the Supervisor of Records in the state must be made within 90 calendar days of the date of response from the record access officer. The petition is expected to contain copies of all the correspondence between the requester and the record access officer.