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EXPIRATION DATE: Until superseded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
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.
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.
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:
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