Custody of Records
In a March 6, 2007 email, you informed requestors that
the stenographic machine output belongs to the stenographer and is
not in the keeping of the Clerk.
Therefore, the Clerk is unable to provide the requested records.
Where a public entity contracts with a third party to
fulfill its public duties, and the public entity
exercises control over that third party,
an agency relationship is created.
See Fifty-one Hispanic Residents of Chelsea v. School Committee
of Chelsea, 421 Mass 598, 607 (1996)
(while subject to control of a public entity
as a principal for the purposes of performing public duties,
private university is a public agent).
A stenographer hired by a municipality to assist in
the transcribing of meeting minutes is providing
a publicly funded service on behalf of that municipality.
Therefore, those records transcribed by the stenographer,
acting as an agent of the Council, shall be viewed as
records constructively created by the Council and are public.
Wherever a record custodian keeps original public records
in a location other than the municipal building,
he or she has a duty to
make the public records available in a location
convenient to the general public for inspection and copying.
Please note that in such situations,
copies of the public records
must also be maintained in the municipal building
in accordance with the Regulations promulgated by this office.
See 950 CMR 32.05(1).
Conclusion
Therefore, as the stenographer is
acting as an agent on behalf of the Council when
transcribing the Council's meetings, the
stenographic transcripts of the Council meetings
are public records.
The Council has the duty to make public records in its custody
readily available to the public for inspection or copying.
While the council may assess a fee for the
provision of these records, the fee must be both reasonable
and in compliance with the
Public Records Law.
Accordingly, the Council, by way of the Office of the Clerk,
is ordered to release the stenographic transcript
of the requested meeting, which may be redacted pursuant to
the exemptions of the Public Records Law.
[ image. Arms of the Commonwealth ]
ENSE PETIT PLACIDAM SVB LIBERTATE QVIETEM
http://www.netstate.com/states/mottoes/ma_motto.htm
The Commonwealth of Massachusetts
William Francis Galvin, Secretary of the Commonwealth
Public Records Division
Alan N. Cote
Supervisor of Records
March 28, 2007
SPR07/055
Ms. Rosaria Salerno, Boston City Clerk Room 601
1 City Hall Plaza
Boston MA 02201
Dear Ms. Salerno:
I have received a petition appealing the response by the
Office of the Boston City Clerk (Clerk) to
a public records request.
See GL c66 s10(b) (2006 ed.)
(Supervisor of Records has
authority to resolve public records appeals);
see also 950 CMR 32.08(2) (appeal process).
Specifically requested is a copy of the stenographic transcript
of the most recent meeting of the Boston City Council (Council)
"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.
GL c4 s7(26) (2006 ed.)
The statutory exemptions are strictly and narrowly construed.
Globe Newspaper Co. v. Dist. Att'y for the Middle Dist.,
439 Mass 374, 380 (2003);
Att'y Gen. v. Ass't Comm'r of the Real Prop. Dep't of Boston,
380 Mass 623, 625 (1980)
Public records, and any non-exempt, segregable
portions thereof, are subject to mandatory disclosure upon request.
GL c66 s10(a) (2006 ed.); see also In re Subpoena Duces Tecum
445 Mass 685, 687 n. 3 (2006); Reinstein v. Police Comm'r of Boston
378 Mass 281, 289-90 (1979) (the statutory exemptions are
not blanket in nature).
Additionally, there is a presumption that
all governmental records are public records.
GL c 66 s10(c) (2006 ed.); 950 CMR 32.08(4).
Therefore, it is the burden of the records custodian to
demonstrate the application of an exemption in order to withhold
a requested record.
GL c66 s10(c) (2006 ed.); see also
Dist. Att'y for the Norfolk Dist. v. Flatley, 419 Mass 507, 511 (1995)
(custodian has burden of establishing applicability of exemption).
Custody of Records
In a March 6, 2007 email, you informed requestors that
the stenographic machine output belongs to the stenographer and is
not in the keeping of the Clerk.
Therefore, the Clerk is unable to provide the requested records.
Where a public entity contracts with a third party to
fulfill its public duties, and the public entity
exercises control over that third party,
an agency relationship is created.
See Fifty-one Hispanic Residents of Chelsea v. School Committee
of Chelsea, 421 Mass 598, 607 (1996)
(while subject to control of a public entity
as a principal for the purposes of performing public duties,
private university is a public agent).
A stenographer hired by a municipality to assist in
the transcribing of meeting minutes is providing
a publicly funded service on behalf of that municipality.
Therefore, those records transcribed by the stenographer,
acting as an agent of the Council, shall be viewed as
records constructively created by the Council and are public.
Wherever a record custodian keeps original public records
in a location other than the municipal building,
he or she has a duty to
make the public records available in a location
convenient to the general public for inspection and copying.
Please note that in such situations,
copies of the public records
must also be maintained in the municipal building
in accordance with the Regulations promulgated by this office.
See 950 CMR 32.05(1).
Fees
While the Clerk may charge a fee for search, segregation and copies,
these fees must be reasonable and in compliance with the
Public Records Access Regulations promulgated by this office under the
Public Records Law.
See 950 CMR 32.06 (fees for public records).
Copies
The Public Records Law provides that a records custodian
shall provide any person with
a copy of a requested public record upon payment of a reasonable fee.
GL c66 s10(a) (2006 ed.)
Under the Regulations, a records custodian 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 CMR 32.06(1)(a).
Search Time
A records custodian may charge a fee
if complying with a request requires "search time".
See 950 CMR 32.03 (defining "search time" as the time needed to locate,
pull from the file, copy, and re-file a non-computerized public record).
A records custodian may charge a pro-rated fee based on
the hourly rate of the lowest paid employee
who is capable of performing the task.
950 CMR 32.06(1)(a).
While the custodian is
permitted to charge for search and segregation fees,
the fee charged should
not serve as a deterrent for the requestor to access public records.
See Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass 427, 436 (1983)
The search fee must reflect the actual cost of
complying with a particular request.
If the cost is determined to be less than the estimated fee,
the Clerk must refund the difference.
GL c66 s10(a) (2006 ed.)
Conclusion
Therefore, as the stenographer is
acting as an agent on behalf of the Council when
transcribing the Council's meetings, the
stenographic transcripts of the Council meetings
are public records.
The Council has the duty to make public records in its custody
readily available to the public for inspection or copying.
While the council may assess a fee for the
provision of these records, the fee must be both reasonable
and in compliance with the
Public Records Law.
Accordingly, the Council, by way of the Office of the Clerk,
is ordered to release the stenographic transcript
of the requested meeting, which may be redacted pursuant to
the exemptions of the Public Records Law.
If you have any questions about this determination,
please do not hesitate to contact this office.
Very truly yours,
Alan N. Cote, Supervisor of Records
One Ashburton Place, Room 1719, 17th Floor
Boston Massachusetts 02108
617 727-2832
Fax 617 727 5914
http://mass.gov/sec/arc/arcrmu/rmuidx.htm
cc:
Ms. Ellen Fritch, Council Stenographer
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Public Records Law and Regulations
http://www.sec.state.ma.us/pre/prepdf/pubreclaw.pdf
General Laws
http://mass.gov/legis/laws/mgl/index.htm
Case Law
http://www.lawlib.state.ma.us/MassPrimary.html#cases
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