Public records law protects legitimate interest in disclosure

Public records law protects legitimate interest in disclosure

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In an email public records request dated March 5 addressed to Michael Dutton, Oak Bluffs town administrator, Martha’s Vineyard Times reporter Steve Myrick asked for a copy of a letter the Oak Bluffs police union sent to police chief Erik Blake regarding then-selectman Kerry Scott.

The Massachusetts Public Records Law gives citizens the right to view or copy documents and records local and state government entities create or hold. Legally, every government record is presumed to be public unless it may be withheld under one of 18 specific exemptions.

In an email dated March 22, Mr. Dutton, a lawyer, declined to release the union letter. “I find the letter falls within the public records exemption relating to the disclosure of records of a personal nature, which could constitute an unwarranted invasion of personal privacy,” Mr. Dutton said.

The Times appealed Mr. Dutton’s decision in a letter dated March 22 to Alan Cote, supervisor of public records, in the office of Secretary of State William Galvin. The Times said that the union letter could not be considered of a personal nature subject to exemption because it was directly related to Ms. Scott’s abuse of her official status.

Mr. Cote provided his decision in a letter to Mr. Dutton dated April 12. His response speaks to the heart of the public records law.

Citing case law, Mr. Cote said that since the public records law favors disclosure, the privacy exemption will only apply “where the privacy interest of the record subject outweighs the public interest in disclosure.”

Mr. Cote wrote: The record in question contains a brief description by the police union of the alleged interaction between a particular selectman and a police officer regarding animal control issues. The content of the record in question is such that it does not rise to the level of being an ‘intimate detail of a highly personal nature.’ Furthermore, the public has a legitimate interest in scrutinizing the conduct of its elected officials, which in this instance, outweighs any individual privacy interest that may exist.”

Mr. Cote directed Mr. Dutton to provide the letter to The Times. Throughout, the exchange between Mr. Dutton and The Times was cordial and professional.

That is not always the case. In the past, The Times has encountered public officials who become uncooperative when asked to provide public documents.

In some cases, it was because the officials in question did not understand the requirements of the law. In a few cases, it was an attempt to avoid providing information that might prove embarrassing to newsmakers.

Newspapers including The Martha’s Vineyard Times often rely on the public records law in the course of reporting but have no greater right of access to public documents than the average citizen.

Despite the broad rights the law provides, officials at the local level with responsibility to provide public documents may sometimes be unaware of the provisions of the law.

For example, in one instance The Times requested a copy of the draft minutes of a meeting of a board of selectmen. The response was that the selectmen had yet to approve the minutes.

“Minutes of open meetings, regardless of form, are public and must be made available at the close of the meeting,” according to the Secretary of State’s guide to the public records law. “There is no requirement that the minutes be transcribed or approved before they are made public.

“Minutes of prior open meetings, regardless of form, should be reviewed and accepted promptly. Copies of the minutes of all open meetings should be readily available. Records custodians are strongly encouraged to waive all fees associated with the minutes of open meetings.”

One provision sometimes poorly understood or even abused is the provision that provides a public official who has custody of the record that is the subject of a request up to ten days to respond or deny a request.

In a story published Jan. 24, 1998, The Times took issue with a decision by the Gay Head selectman to withhold a list of delinquent taxpayers and an accompanying auditors’ report from the public. At the time, selectman Walter Delaney claimed a “legal right” to wait 10 days.

But officials in the office of Secretary of State William Galvin described the selectmen’s action as “egregious” and a violation of the spirit of the law.

Then chief of staff Jack McCarthy said, “Once they receive it as a final record it is public record. Period!”

Mr. McCarthy said the 10-day period was designed so that in legitimate circumstances officials have time to gather hard-to-find records, not so that they could delay the release of a completed and readily accessible document.

Record custodians are allowed to charge a “reasonable fee” for the time it takes to respond to a records request. “A records custodian is encouraged, but not required, to waive fees where disclosure is in the public interest,” according to the secretary.

The public records law provides 18 specific exemptions. The privacy exemption is the most frequently invoked exemption, according to the public records guide. “The language of the exemption limits its application to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.”

The state public records law is often mistakenly referred to as the federal Freedom of Information Act, signed into law in 1966 by President Lyndon B. Johnson.

For more information, an excellent resource is “A Guide to the Massachusetts Public Records Law,” available at: www.sec.state.ma.us/pre/prepdf/guide.pdf.