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 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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