Dear Ms. Braga:
I have received the petition appealing the response of the City of Boston (City) to the request for public records. G. L. c. 66 s 10(b);
http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleX/Chapter66/Section10
see also 950 C.M.R. 32.08(2)
http://www.lawlib.state.ma.us/source/mass/cmr/950cmr.html
Specifically requested that an electronic copy of the output created by the stenographer for the Boston City Council (Council) be provided via e-mail.
The Public Records Law
http://www.sec.state.ma.us/pre/preidx.htm
strongly favors disclosure by creating a presumption that all governmental records are public records. G L. c. 66, s 10(c); 950 C.M.R. 32.08(4). “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, s 7(26).
http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleI/Chapter4
It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, s 10(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption).
http://masscases.com/cases/sjc/419/419mass507.html
It has recently come to the attention of this office that the Council’s stenographer has acquired a new [ Diamante
http://stenograph.com ]
stenographic machine that creates an electronic output file. Subsequent to Council meetings, the file is downloaded onto a computer operated by the stenographer who works for the Council as a contract employee. The City has not claimed any exemption to permit or require the withholding of the electronic record generated by the stenographic machine.
Ms. Ann Hess Braga, Esq.
Page Two
February 16, 2012
SPR11/366
In a meeting in the Council Chamber between you, the stenographer and me, the stenographer indicated that the file is not easily read by the average computer user. Please note that a custodian of records is not obligated to create a record in response to a request, nor is one required to convert a record into a readable format. The request was made for the file itself, and the file in its native form is a public record, absent any redactions; it need not be converted into a more accessible form.
The stenographer has indicated that each stenographer possesses a particular style and language in stenographic notation that is unique. The responsive file may be indecipherable by the average reader. Again, the City has no obligation to translate or otherwise convert the file into a more accessible form. The Public Records Law relates to the status of records as they exist at the time of the request The responsive record, in whatever form it exists, must be provided to the requester. [Key may be requested for transcribing.]
Finally, the stenographer has posed a question as to whether the output file is the property of the City. It has long been the position of this office that records created by third party contractors for governmental entities are public records, regardless of the physical location of the record. The legal custody lies with the governmental entity. The physical location of the record does not change its status as a public record.
In order to withhold a record requested pursuant to the Public Records Law, the record custodian is charged with the duty of providing with specificity how a particular exemption applies to each individual record requested. See G. L. c. 66, s 10(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). To date, the City has provided no explanation as to why an electronic copy of the stenographic output should not be provided.
Accordingly, I find that the City has not met its burden and has not overcome the presumption that the responsive records are public records. You are hereby ordered to obtain a copy of the record from the stenographer, and provide a copy of the electronic record within ten (10) days.
If the City is planning to charge for the cost of complying with the public records request, the requester must be provided with a written, good faith estimate. Once the City receives the estimate funds, the records must be provided. A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, s 10(a); see also 950 C.M.R. 32.06(2). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06. Under the Regulations, a custodian of records may assess a maximum fee of twenty cents ($.20) per page for a photocopy of a public record and fifty cents ($.50) per page for a computer print out of a public record. See 950 C.M.R. 32.06(1)(a). Please note that as the request is for an electronic record, no charge should be assessed for copies, as no paper copies have been requested.
Ms. Ann Hess Braga, Esq.
Page Three
February 16, 2012
SPR11/366
Whereas it is the finding of this office that the responsive record is public, this administrative appeal is now closed.
Very truly yours,
Shawn A. Williams, Assistant Director
email
pre at sec.state.ma.us
http://www.sec.state.ma.us/arc/arcrmu/rmuidx.htm
http://en.wikipedia.org/wiki/File:Coat_of_arms_of_Massachusetts.svg
ENSE PETIT PLACIDAM SVB LIBERTATE QVIETEM
She seeks with the sword a quiet peace under liberty
The Commonwealth of Massachusetts
William Francis Galvin, Secretary of the Commonwealth
Public Records Division
http://www.sec.state.ma.us/arc/arcrmu/rmuidx.htm
One Ashburton Place 17th Floor
Boston Massachusetts 02108
telephone 617 727-2832
fax 617 727-5914
cc:
Ms. Ann Hess Braga, Esq.
City of Boston
Boston City Hall 5th Floor
Boston Massachusetts 02201
telephone 617 635-3040
fax 617 635-4203
email
city.council at cityofboston.gov
http://cityofboston.gov/citycouncil
February 16, 2012
SPR11/366
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