SPR Bulletin 03-96

TO: Public Records Custodians
SUBJECT: Application of the Public Records Law to
Electronic Records Access

EXPIRATION DATE: Until superseded
PURPOSE: This bulletin provides guidance to records custodians on their duties and obligations to respond to requests for information in a computer medium

BACKGROUND:
Freedom of information laws give life to the rights of free speech and meaningful electoral participation by providing a mechanism for holding government accountable. The computer generally enhances the government's ability to collect, compile, manipulate and disseminate information. Certainly, as the manner in which government information is maintained evolves, the means of accessing such information must experience a parallel evolution to preserve a meaningful right of access. Limiting the public's rights of access to only paper records at a time when the government is using a far more efficient means of reviewing information, is an effective denial of this right to meaningful access.

FINDINGS:
The term "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 city, town, or agency of the Commonwealth, unless falling within a statutory exemption. G. L. c.4, § 7(26). A literal reading of this statute necessarily leads to the conclusion that the availability of information in the custody of Massachusetts governmental entities is dependent upon the substance of the information, rather than the form in which it is maintained. This means that records created or maintained on a computer are subject to the disclosure requirements of the Public Records Law.

Many cities and towns do not have the ability to maintain advanced computer capabilities. Therefore, in order to maximize efficiency, several municipalities have contracted with private companies to computerize and maintain various city and town records. There is nothing in the Public Records Law which prohibits a city or town from engaging in such a relationship. See G.L. c.66, § 10 (Public Records Law). However, the records do not become the private property of the company. Moreover, the municipality cannot contract away its public records duties. Consequently, a provision in the contract between the municipality and the private computer company prohibiting the dissemination of information cannot serve as a basis for non-disclosure in response to a public records request.

ACTIONS:
1. Obligations of the legal custodian. Under the Public Records Law, the government records custodian who creates or receives records in his capacity as a government official is primarily responsible for providing access to its records. This legal custodian cannot, consequently, insist that a requester seek access from the service bureau within the agency (government MIS department, data processing division, etc.) or outside the government operation (private company). The legal custodian of the records is obligated to obtain requested records from that service bureau and provide access to them upon request.

2. Records not yet in existence. A record holder's duty to comply with requests for information extends only to records that are in existence and in his custody. There is no obligation to create a record in response to a public records request. G.L. c.66, § 10(a). Accordingly, a government agency, or a private company acting in its behalf, would not be obligated to create programs which essentially produce a new record in response to a public records request. This does not mean that the agency cannot write such programs; only that it is not required to do so. The writing of such new programs by, or on behalf of, the government agency, is considered the creation of a record and is done outside the realm of the Public Records Law. Therefore, as long as there is a requester who is willing to pay for this programming to create a new record, the government agency may establish whatever fee it deems appropriate. However, that fee may only be assessed once. Once the government agency is in possession of that newly designed program, the records generated thereby are subject to mandatory disclosure upon request. G.L. c.4, § 7(26). Additionally, once the program is in existence, the municipality may only charge fees in accordance with the Public Records Law.

3. Segregation. Public records, and nay non-exempt, segregable portions thereof, are subject to mandatory disclosure upon request. It is the burden of the record custodian to demonstrate the application of an exemption in order to withhold a requested record. Therefore, a custodian is obligated to segregate exempt information from that which is public and provide an independent public record. G.L. c.66, § 10(a) (custodial duty to segregate). Segregation must also be accomplished when responding to requests for electronic records. Computer segregation may involve programming. If compliance involves writing a program to segregate information, then the custodian must do so. Writing a program to manipulate data or combine data from various sources so that the end product is truly a new record is not required, but as stated above, is permissible.

4. Prospective requests. Requests for electronic records which are prospective in nature, such as an on-line subscription or monthly updates of information, will not be subject to the Public Records Access Regulations since the request is actually for a record not yet in existence. Such a request exceeds the purview of the Public Records Law, therefore the custodian is able to set her own reasonable fees for compliance.

5. Software. A custodian is not obligated to provide copies of a computer program. A computer program in and of itself is a tool used in the processing of data rather than a "record," and therefore is not subject to mandatory disclosure.

6. Format and medium. A custodian is not obligated to provide information in a format or medium which is compatible to every requester. That is, if a custodian is able to provide information in a compatible format or medium, then he or she is obligated to do so. However, the burden is not on the custodian to convert data to be compatible with the requester's system. A records custodian must provide the information in whatever format it is capable of generating. The requester is then responsible for converting the data into the desired format.

Questions regarding access to public records should be directed to:

Public Records Division
1 Ashburton Place, Room 1719
Boston, MA 02108
Phone 617-727-2832
Fax 617-727-5914
Email pre@sec.state.ma.us
www.sec.state.ma.us/pre

Questions regarding this bulletin and regarding the maintenance and disposal of government records (including electronic records) should be directed to:

Records Management Unit
Massachusetts State Archives at Columbia Point
220 Morrissey Blvd.
Boston, MA 02125
Phone 617-727-2816
Fax 617-288-8429
Email recman@sec.state.ma.us
www.sec.state.ma.us/arc/arcrmu