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 [ logo. recycling symbol ] 50% Recycled Paper 30% Post Consumer http://www.maa.org/mathland/mathtrek_04_28_03.html 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 List archives at http://lists.ufl.edu/archives/recmgmt-l.html Contact [log in to unmask] for assistance