May 16, 2006
I have received your petition appealing the lack
of response of the Boston Finance Commission
(Commission) to your public records request of April
20, 2006. Massachusetts General Law provides an
aggrieved public record requester two separate and
distinct remedies when a custodian refuses or fails to
comply with a public records request.
The first remedy is judicial in nature and
provides for the requester to petition the appropriate
Superior Court department for an order commanding
compliance with the public record request and the law.
The second remedy is administrative in nature
and provides for the requester to petition this office
for a determination of the nature of the record(s) and
the appropriateness of any claimed custodial
exemption.
When a custodian has failed to respond to a
request within the statutorily mandated timeframe of
ten (10) days or has failed to produce any records or
has failed to claim a valid exemption to the public
records law, this office is unable to evaluate the
nature of the record.
Furthermore, this office is not empowered to prosecute
persons on behalf of the Commonwealth for violations
of the law.
Therefore, without any documents to review and
without a custodial exemption claim, an appeal
pursuing the administrative remedy is not possible.
This remedy may become available in the future if a
custodian claims an exemption AND you believe that
such a claim is improper. Until such time, however,
you have a right to proceed with the judicial remedy
described above and as provided by law.
Enclosed is a copy of the letter this office has
sent to the Commission, with a copy of your appeal,
outlining the duties of a record custodian under the
Massachusetts Public Records Law.
Very truly yours,
Alan N. Cote
Supervisor of Records
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May 16, 2006
Mr. Paul J. Minihane
Boston Finance Commission
152 North Street
Boston, Massachusetts 02109
Dear Mr. Minihane:
This office has received a petition from Mr.
Donald Saklad stating that the Commission has not
responded to his public record(s) request of April 20,
2006 (copy enclosed).
Please be advised that this office believes that
all records made or received by a governmental body,
officer or employee of the Commonwealth are public and
must be provided upon request. Subject to redaction,
the requested documents are public records. (There is
a presumption that all governmental records are public
records. G. L. c. 66, § 10(c) (2004 ed.); 950 C.M.R.
32.08(4)).
A custodian shall, at reasonable times and
without unreasonable delay, permit a public record, or
any segregable portion of a record, to be inspected
and examined by any person, and furnish one copy upon
payment of a reasonable fee. See G. L. c. 66, § 10(a)
(2004 ed.).
There are fifteen (15) statutory exemptions to
the Public Records Law. It is the burden of the
custodian to demonstrate the application of an
exemption in order to withhold a requested record. G.
L. c. 66, § 10(a) (2004 ed.); see also District
Attorney for the Norfolk Dist. V. Flatley, 419 Mass.
507, 511 (1995) (custodian has burden of establishing
applicability of exemption).
A custodian is required to maintain procedures
to avoid unreasonable delays and to allow inspection
and copying by any person during regular business
hours. 950 C.M.R. 32.05(1).
A custodian of a public record shall, within ten
(10) days following receipt of a request for
inspection or copy of a public record, comply with
such request. G. L. c. 66, § 10(b) (2004 ed.).
A custodian may assess a reasonable fee for
complying with a public records request. G. L. c. 66,
§ 10(a) (2004 ed.); see also 950 C.M.R. 32.06(2)(where
cost of complying with a public records request is
expected to exceed ten dollars ($10.00), custodian
shall provide written good faith estimate).
The failure of a custodian to comply with a
public record request by refusing to allow inspection
or by refusing to provide a copy of a public record
may be a violation of law which may subject the
custodian to criminal or civil penalties.
If you have any questions concerning a record
custodian's responsibilities under the Massachusetts
Public Records Law, please contact this office at
(617) 727-2832.
Very truly yours,
Alan N. Cote
Supervisor of Records
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