Your Right to Information

What Information Is Public

In Massachusetts, the public records laws (informally known as the Freedom of Information Act or FOIA, pronounced FOY'-AH) give people the right to see and copy certain state government records.¹ There is also a federal FOIA which gives people access to federal government records.²

Although this chapter does not specifically cover the federal FOIA, most of what is included about the state FOIA also applies to your access to federal government records.

As a member of the public, you have a right to see any document that is considered a "public record." A public record can be a document of any size, a photograph, financial statement, tape recording, or information stored in a computer—any document held by the government—unless FOIA says that it is not a public record.³ FOIA states that a document is not a public record if it is:

• Kept secret by another law;
• Related to a government policy position still being developed;
• Related solely to internal personnel policies and its disclosure would interfere with the performance of the government agency;
• Part of an individual's personnel records, medical files, or anything else where its disclosure "may constitute an unwarranted invasion of personal privacy";
• Part of a government employee's personal notes which are not part of the government's files;
• Part of a secret investigation and its disclosure might compromise the investigation;
• A trade secret or other commercial or financial information which was voluntarily provided to the government;
• A sealed bid for a public contract before it is unsealed;
• An appraisal of land before an agreement for sale has been made or any lawsuit about the land is over;
• Identification of an applicant for a gun license;
• Test questions for state licensing exams; or
• A contract between a government health care facility and a health insurer.

Under the law, the official holding the record has the burden of proving that it is not a public record.⁴

Which Government Offices Have Public Records

The government offices covered under FOIA include all state agencies, departments, boards, commissions, and bureaus. For example, the Department of Housing and Community Development (DHCD) must give you documents that are public records. FOIA also covers all city, town, county, and regional government entities, such as housing authorities, tax assessors offices, registries of deeds, and zoning boards.⁵

FOIA does not cover two branches of state government: the state legislature and the courts. As a practical matter, however, you can obtain most legislative documents, such as bills, relatively easily from the State House in Boston. Court documents, although not covered by FOIA, are in many cases available to the public, unless covered by special privacy protections, such as laws which protect certain juvenile and criminal records.

FOIA also does not cover private individuals or corporations. Suppose, for example, that you rent an apartment from a private landlord. You have heard that the landlord has a policy, or at least a practice, of keeping records about "suspicious activities" of tenants. If you ask the landlord for a copy of the policy, does she have to give it to you? Even if there is a written policy—probably not. Under FOIA, because a private landlord is not the government, FOIA does not apply, even if your landlord might be getting some government subsidies.

On the other hand, if your landlord is a local housing authority and there is a document in the housing authority's files describing a policy concerning keeping records about suspicious activities, the housing authority must, under FOIA, give you a copy of this policy.

How to Get Public Records

Generally, getting access to public records is simple. As a member of the public, you walk into the office of the government agency that has the document you want and ask for it. In many cases, you will be given access to the document you want. If a person refuses to let you see a document or is unsure about whether a particular document is public, there are a number of steps you can take to get the information you need.

1. Write a letter to the person who has responsibility for keeping the document you want. If you do not know who that is, you can just address your letter to the "Custodian of Records." The letter should describe, as clearly as possible, the document or documents you want to see. You need to give the person just enough information so that she can locate the document. You do not have to identify the specific document. For a sample, see Form 22: Public Records Request Letter. Be sure to keep a photocopy of your letter, and make a note of when you mailed or delivered it. You may want to send it by registered or certified mail, but that is not necessary.
   

   FOIA says that a government official who holds a public record must give you access to the document you requested within 10 days of receiving your letter.⁶

2. After you send a request letter, follow up with a phone call or perhaps a visit to the place where you have requested the record. If the document custodian invites you to take a look at the document, go take a look. You have a right to purchase one copy of the entire document, or just the pages you want, at no more than 20¢ per page. You cannot be charged for just looking at a document. You may also ask the document holder to give you the document at no cost because you think the disclosure to you "would benefit the public interest" and be of interest to other people.⁷ For example, if you are a representative from a tenant group and you want to get copies of your housing authority's budget, you can ask the housing authority to give you the document at no cost because it will be of benefit to other tenants. In this type of situation a document holder can waive a fee, which means that she can decide not to charge you.

If the person holding the record denies you access to the information you have requested, she must tell you her reasons in writing.⁸ FOIA says that "there shall be a presumption that the record sought is public, and the burden shall be upon the custodian to prove" that it is not.⁹ In many respects, this is the most important part of FOIA. Public records are for the public to have access to; any document custodian who withholds access must have a good reason, based on the specific wording of the law, that a document is not public.

3. If the document custodian refuses you access, does not give you what you requested, or, more likely, does not respond to you within 10 days, you may complain to the Supervisor of Public Records in the office of the Secretary of State.¹⁰ You must do this in writing within 90 days of being denied the information you requested. You must send this letter to:

   Supervisor of Public Records
   Office of the Secretary of State
   One Ashburton Place, Room 1701
   Boston, MA 02108

   The phone number is 617-727-2832.

   When you send a complaint to the Supervisor of Public Records, attach a copy of your original request letter and the letter denying you access, if there is one. It is very important to save copies of all of these documents for yourself in case you run into problems later.

   The Supervisor of Public Records will have a staff person try to resolve the problem informally. If this does not work, the Supervisor will determine whether the records are public. If your case is complicated, or if there is some question as to whether what you've asked for is a public record, or whether, for instance, its disclosure might violate the personal privacy of another person, the Supervisor may take several months to make a decision. If, however, the issue is a simple one, you may wish to call the Supervisor's office and ask that the case be handled quickly.¹¹ This may take a few weeks. If the Supervisor decides the records are public, she will direct the holder of the record to give you access to the document. If the holder disobeys this order, the Supervisor may refer the matter to the state Attorney General, who can go to a court and get an order requiring the holder to give you the information you are seeking.¹²

4. If a government agency refuses to give you access to public records, you have the right to sue that agency in court. Suing, however, is complicated and is best done with the help of a lawyer.¹³