Why Is Massachusetts Public Records Law So Confusing?

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Massachusetts is notorious for having confusing and restrictive public records laws.
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Disclaimer: The below is solely intended for informational purposes and in no way constitutes legal advice or specific recommendations.

Part of the reason we have the Freedom of Information Act and public records law is to create accountability for those who govern us in the United States. This mandated transparency is intended to keep, and hopefully does succeed in keeping, politicians, lawmakers, government employees and other enforcers honest.

Each U.S. state has control over its public records laws and some states are more “secretive” than others. Massachusetts, for instance, makes it notoriously difficult for the average citizen to access public records — and they’re able to do so thanks to approximately 70 exemptions in their legal code. Filing a public records request with the state is difficult, at best, and the laws set in place to protect their three branches of government have been upheld for decades.

How Do You Request Public Records in MA?

Technically, there’s no real protocol when it comes to making a public records request in Massachusetts, except that you need to offer a “reasonable description” of the records you want. You can request the records held by a records custodian in person, by email, fax, or by mail. The best option is by traditional mail, as you’ll have proof of delivery, and there’s hopefully less likelihood of confusion as to which records you’re seeking, if the request is in written form.

Within 10 days, you should have an response in writing from a records custodian. You might not get the records at this point, but at least you’ll know that your request was received and whether your request will be fulfilled (for a fee) or denied because of those 70 aforementioned exemptions.

The fees include the hourly rate of the lowest-paid employee who can research, find, copy, and then refile the records. You’ll also be charged 20 cents per page for copies.

If a custodian denies your request, they are required to tell you why, or at least list the exemptions that they’re using to deny you. You have the right to file an appeal to the public records’ supervisor, but you only have 90 days in which to do so. Your appeal must be predicated on the fact that either you did not receive a response in 10 days, exemptions were not listed or explained, or the fee to retrieve public records was exorbitant.

Why Are Public Officials Able to Deny Requests?

In Massachusetts, three government branches are exempt from the public records law, including the executive, judiciary, and legislative branches. That means governor communications, legislative agendas, and other important documents can remain unknown to constituents.

The reason Massachusetts is able to keep so much information from the public is because of a law created in 1973.

Fortunately for citizens of The Bay State, laws have changed a little recently. In 2016, the Special Legislative Committee on Public Records worked to change things, making it slightly easier to obtain public records. However, Massachusetts still maintains some of the most confusing and restrictive public records laws in the country.

What Are the Dangers of Denying Access?

Often, it’s journalists trying to keep politicians accountable who are responsible for the most public records requests. Sometimes a public record request is denied, which sends up a red flag for a reporter. This was the case for Beth Slovic, a freelance reporter in Portland, Oregon whose request for a list of employees on paid administrative leave from Portland Public Schools was denied.

Slovic and a Portland parent (whose public records request was also denied) were sued by Portland Public Schools after they filed an appeal. They finally got their records after nearly two years battling the school district, and a judge awarded the citizens $200,000 in legal fees. It turned out that the school system was trying to block the two women from finding out that a teacher had been suspended after at least three incidents of violence at work.Public records are of vital importance to citizens, as they can reveal important and enlightening information about individuals who are serving in their local schools, boards, and government offices. You can exercise your right as a citizen by performing a public records search if you’re concerned about someone in your community.

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