BillericaNews BillericaNews Justice Image

Home Page Answer to Letter of Complaint
Subject: Charging Admission to See Public Records
To: Joseph Dougherty
From: Office of the Secretary of State-
Supervisor of Public Records
Date: April 21, 1998
Location: Town of Billerica, Massachusetts

                 The Commonwealth of Massachusetts
       William Francis Galvin, Secretary of the Commonwealth
                      Public Accords Division

Carolyn Kelly MacWilliam
Supervisor of Public Records
                                          April 21, 1998

Cheryl A. Robertson
Town Accountant
Town of Billerica
365 Boston Road
Billerica, Massachusetts 01821

Dean Ms. Robertson:

I have received a petition from Joseph Dougherty appealing the
fees assessed by the Billerica Town Accountant to comply with his
November 26, l997, request for access to public records. See
G. L. c. 66, sec. 1O(b) (1996 ed.) Supervisor of Public Records has
authority to resolve public records appeals); see also 950 C.M.R.
32.08(2) (appeals process).  Specifically, Mr. Dougherty
requested access to records reflecting payments to two (2) law
firms during six (6) specified months.

"Public records" is broadly defined to include all documentary
materials or data, regardless of physical form or
characteristics, made or received by any officer or employee of
any town of the Commonwealth, unless falling within a statutory
exemption. G. L, c. 4, sec. 7(26) (1996 ed.).  The statutory
exemptions are strictly and narrowly construed.  Attorney General
v. Assistant Commissioner of the Real Property Department of
Boston, 380 Mass. 623, 625 (1980); Attorney General v. Board of
Assessors of Woburn, 375 Mass. 430, 432 (1978). Public records,
and any non-exempt, segregable portions thereof, are subject to
mandatory disclosure upon request. G. L. c. 66, sec. lO(a) (1996
ed.), see also Reinstein v. Police Commissioner of Boston, 378
Mass. 281, 289-9O (1979) (the statutory exemptions are not
blanket 1n nature).   Moreover, there is a presumption that all
governmental records are public records. G. L. c. 66, sec. lO(c)
(1996 ed.); 950 C.M.R. 32.08(4).  Therefore, it is the burden of
the record custodian to demonstrate the application of an
exemption in order to withhold a requested record. G. L. c. 66,

Cheryl A. Robertson
Page Two
April 21, 1998

sec. 10(c) (1996 ed.); see also District Attorney for the Norfolk
District v. Flatley, 419 Mass. 507, 511 (1995) (custodian must
offer specific proof that the documents sought are of a type to
which an exemption applies).

Mr. Dougherty requested access to certain legal bills. It is my
understanding that the bills themselves do not reflect the cases
or legal matters worked on.  Furthermore, you have not asserted
the application of an exemption.  Accordingly, I must presume
that the records sought are public.  See G. L. c. 66, sec. 10(c)
(1996 ed.) (presumption that records are public).  In your letter
to Mr. Dougherty dated December 2, 1997, you estimate that it
will take two (2) to three (3) hours to search for the requested
records.  Although your letter does provide that Mr. Dougherty
may perform his own search, you require that a person from your
office must assist him and that Mr. Dougherty must pay for that
assistance.  Citizens should not be required to pay a premium for
access to public records, since the ability to inspect the
records of government is fundamental in our democracy.  Globe
Newspaper Company v. Boston Retirement Board, 388 Mass. 427, 436
(1983);  see also Real Property Department, 380 Mass. at 625
(freedom of information laws ensure the availability of
information concerning the operation of government officials).
If your office actually did the search for Mr. Dougherty, then a
fee could be charged.  However, Mr. Dougherty has chosen to
undertake the search himself.  If you deem it necessary that a
staff person be in attendance during Mr. Dougherty's search for
and inspection of records, that is your choice.  However, you may
not pass that cost on to the requester.

It is my understanding that in a January 15, l998, telephone
conversation you informed Staff Attorney Michelle K. Geary that
there is no filing system for the requested records.  Rather, the
requested bills are in a storage bin.  Accordingly, one would
have to go through all of the bills in that bin in order to
locate any responsive records.  Be advised that the Massachusetts
General Laws require custodians to keep public records arranged
in a manner that will allow them to be conveniently examined.
G. L. C. 66, sec 12 (1996 ed.).  You cannot charge the requester
for your own poor filing system.  You are hereby advised to
immediately take steps to ensure that your office complies with
this provision of the law.  A member of the Records Management
Unit of this office will contact you to assist in filing your
records appropriately. 

Cheryl A. Robertson
Page Three
April	21, 1998

You are hereby ordered to provide Mr. Dougherty with access to
the requested bills, without assessing a fee for staff
assistance.  Failure to provide Mr. Dougherty with access to
these records within ten (10) days of receipt of this
determination may result in notification to the Office of the
Attorney General for enforcement.

                                          Very truly yours,

                                              [signed by]

                                          Carolyn Kelly MacWilliam
                                          Supervisor of Public Records

cc: Joseph Dougherty
    Terry French, Records Management Unit


Back to Letters

Comments are invited by contacting BillericaNews through the News Editor

Jump to the: Home Page or the News Page or the Laws Page

Copyright (c) 1998 BillericaNews. All rights reserved.