SPR Bulletin 04-96

TO: Public Records Custodians
SUBJECT: Fees for Access and Copying of Electronic Public Records
EXPIRATION DATE: Until superseded
PURPOSE: This bulletin provides guidance to custodians on how to compute the applicable fees for copying and accessing electronic records

The Public Records Law clearly applies to the disclosure of electronic records. The computer enhances government's ability to provide information in various formats not available on paper. Additionally, the computer enables the custodian to merge files or manipulate data in order to create new records. The government is entitled to charge certain costs associated with compliance with requests for data in magnetic media.

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 municipality or agency of the Commonwealth, unless falling within a statutory exemption. G. L. c.4, § 7(26). Therefore, the Public Records Law clearly applies to government records generated, received, or maintained electronically.

Public records, and any non-exempt, segregable portions thereof, are subject to mandatory disclosure upon request and upon payment of a reasonable fee. Accordingly, a custodian may withhold exempt information within a record but must disclose any public portions. A custodian may recover costs incurred when complying with public records requests, including costs associated with searching for the record and segregating any exempt information. Segregation may be accomplished by blocking out exempt information on a copy of the record, or through electronic segregation prior to disclosure.

1. Unless otherwise established by statute, a records custodian may charge no more than the following fees for copies of public records: twenty cents ($.20) a page for photocopies, twenty-five cents ($.25) for copies maintained on microfilm or microfiche, fifty cents ($.50) a page for computer printout copies and for copies of records not susceptible to ordinary means of reproduction (such as oversized documents, audio tapes and computer tapes), the actual cost incurred may be assessed. When the cost of complying with a public records request is expected to exceed ten dollars ($10.00), the records custodian shall provide the requester with a written, good faith estimate of the costs involved.

2. The Public Records Access Regulations (Regulations) also allow a record custodian to assess a fee for a search of computerized records based on the actual cost incurred from the use of the computer. 950 C.M.R. 32.06(1)(e). The only such "actual costs" which may be recovered are: the cost of the energy consumed during use, the materials used, and the prorated salary of the computer operator. Minimum fees may not be imposed for the inspection, or copying, of a public record.

3. There is no basis in the Public Records Law or Regulations for recovering the costs incurred in developing the database or entering information. These costs are incurred by a custodian in the daily operations of the office and are not the direct result of complying with a request for public records. Therefore, such costs cannot be passed along to a requester.

4. A custodian has a duty to write a program to segregate exempt information from non-exempt computerized information. See G.L. c.66, § 10 (custodial duty to segregate). Again, only the actual costs incurred may be assessed for compliance.

5. In certain instances, the reprogramming necessary to comply with a request in a specific format is tantamount to creatinga document, rather than segregating an existing record. 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. Since the newly created record is not within the statutory definition of "public records," the Regulations do not apply and the custodian may assess any reasonable fee for such reprogramming to create a document.

6. Requests for on-line access to records or for a subscription service to certain information constitute prospective requests. Since those records are not yet in existence at the time of the request, they are also outside the purview of the Regulations and the custodian may set the fee for such access.

7. A custodian may be reimbursed only once for the cost of the programming necessary to comply with a public records request. Once a program is written, a custodian may not recover the cost of writing the program each time that program is used. Rather, that program becomes part of the municipality's files and the custodian may assess only the cost of reproducing the particular record.

8. A custodian may require payment of the fee prior to complying with a public records request. See 950 C.M.R. 32.05(6) (requester is entitled to one copy of a public record or any desired portion of a public record upon payment of a reasonablefee).

Questions regarding custody or access to public records (including records maintained on a computer) 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

Questions regarding this bulletin and 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