|Home Page||Answer to Letter of Complaint|
|Subject:||Charging Admission to See Public Records|
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 SPR98/018 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 SPR98/018 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 SPR98/081 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
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