HOUSE DOCKET, NO. 3237        FILED ON: 1/16/2015

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2717

The Commonwealth of Massachusetts

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PRESENTED BY:

Antonio F. D. Cabral

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act to improve access to public records.

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PETITION OF:

HOUSE DOCKET, NO. 3237        FILED ON: 1/16/2015

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2717

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 2784 OF 2013-2014.]

The Commonwealth of Massachusetts

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In the One Hundred and Eighty-Ninth General Court
(2015-2016)

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An Act to improve access to public records.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1.  Clause twenty-sixth of Section 7 of chapter 4 of the general laws, as appearing in the 2012 official edition, is hereby amended by inserting after the word “characteristics,” the following words:--

including public record information which may be separately retrieved from an electronic record,

SECTION 2.  Chapter 66 of the general laws, as so appearing, is hereby amended by inserting after section 3 the following new section:--

Section 3A.  When designing or acquiring an electronic recordkeeping system or database, any person having custody of a public record shall ensure that such system or database is capable of providing data in a common format such as, but not limited to, the American Standard Code for Information Interchange or the Uniform Character Set Transformation Format.  When records maintained electronically include both public record information and exempt information that may be withheld from public inspection, the custodian shall design its information storage and retrieval methods in a manner that permits the segregation and retrieval of public record information in order to provide maximum public access.  No custodian of a public record may enter into a contract for the storage of electronic records containing public record information that impairs or restricts public access to those records. 

SECTION 3.  Chapter 66 of the general laws, as so appearing, is hereby amended by inserting after section 6 the following new section:--

Section 6A.  Every state agency, as defined in chapter 66A, shall designate one or more employees as records access officers, who shall have the custody of all its public records other than those records for which a clerk is the statutory custodian.  Each agency shall publicize by posting in a conspicuous location at its offices and in a conspicuous location on its website, if any, the name, title, business address and business telephone number of the designated records access officers. The designation of one or more records access officers shall not be construed to prohibit employees who have in the past been authorized to make records or information available to the public from continuing to do so.

Records access officers shall be responsible for coordinating such agency’s response to requests for access to records under the provisions of this chapter, shall facilitate the informal resolution of requests by timely and thorough production of records, and shall ensure that the agency:

(a)Assist requesters seeking records to identify the records sought;

(b)In responding to a request, indicate whether the records are available in electronic form and the manner in which the records are stored, filed, retrieved or generated, to assist requesters in describing the records sought;

(c)Contact requesters when the response to a request would be voluminous so the agency may, at the option of the requester, assist the requester in focusing the request in order to facilitate the timely and thorough production of the records sought;

(d)Maintain a reasonably detailed document classification scheme outlining categories of records maintained by the agency, whether or not open for public inspection. The document classification scheme shall be updated annually, conspicuously marked with the date of the most recent update, and posted on the agency’s website, if any. 

SECTION 4.  Section 10 of said Chapter 66 of the general laws, as so appearing, is hereby amended by striking subsection (a) and inserting the following:--

(a) Every person having custody of any public record, as defined in clause Twenty-sixth of section seven of chapter four, shall, at reasonable times and without unreasonable delay, permit it, or any segregable portion of a record which is an independent public record, including public record information which may be separately retrieved from an electronic record, to be inspected and examined by any person, under his supervision, and shall furnish one copy thereof upon payment of a reasonable fee not to exceed the actual cost of reproducing the record. 

In determining the actual cost of reproducing a record, the custodian of the record may include only: (i) the actual cost of any storage devices or materials provided to the requester in complying with such request; (ii) an amount equal to the hourly salary attributed to the lowest paid employee who has the necessary skill required to prepare a copy of the requested record, provided that no fee shall be charged unless at least two hours of employee time is needed to prepare a copy of the record requested, and further provided that no fee shall be charged for employee time to prepare photocopies of records or retrieve electronic public record information; and (iii) when the custodian`s information technology capabilities are inadequate to prepare a copy of the record, the custodian may charge the requestor the actual cost of engaging an outside service to prepare a copy, provided that no fee shall be charged in excess of the hourly salary attributed to the lowest paid state employee who has the necessary skill required to prepare such a copy.  In no case shall fees for black and white photocopies exceed 5 cents per letter size page or smaller, or 7 cents per larger page.

Every person having custody of a record shall inform the requester of the estimated cost of preparing a copy of the record if more than two hours of an employee`s time is needed, or if an outside professional service would be retained to prepare a copy of the record.  No fee shall be charged for the following: (1) search time; or (2) review of the content of requested records to determine the extent to which exempt and public information must be segregated.

SECTION 5.  Section 10 of said Chapter 66 of the general laws, as so appearing, is hereby further amended by inserting after the final sentence of subsection (b), the following:--

In any such proceeding, the court may award reasonable attorney’s fees to the party seeking public records if that party has substantially prevailed. 

SECTION 6.  Section 10 of Chapter 66 of the general laws, as so appearing, is hereby amended by inserting after the word “record,” in line 4, the following:--

including public record information which may be separately retrieved from an electronic record,

SECTION 7.  Section 10 of Chapter 66 of the general laws, as so appearing, is hereby further amended by inserting at the end thereof the following paragraph:--

(e) If a public record or public record information is available in electronic form, the custodian shall, at the option of the requester, provide it in that form.  In making a record available to a requestor, the custodian shall provide the record in any format requested if the record is readily reproducible in that format.  If a request does not specify the format for producing electronically stored information, the custodian shall provide the record information in a common format that is reasonably usable.  For public records in electronic form, a custodian may charge the requestor only the actual cost of any storage devices or materials provided to the requestor.  When the custodian`s information technology capabilities are inadequate to prepare a copy of the record, the custodian may charge the requestor the actual cost of engaging an outside service to prepare a copy, provided that no fee shall be charged in excess of the hourly salary attributed to the lowest paid state employee who has the necessary skill required to prepare such a copy.  Any programming necessary to retrieve a public record or public record information and provide the record or record information in the requested format, or to allow the record or record information to be read or printed, shall not be deemed to be the preparation or creation of a new record.

SECTION 8.  Chapter 66 of the general laws, as so appearing, is hereby amended by inserting after Section 10 the following new section:--

Section 10A.  (a) Every state agency, as defined by Chapter 66A, that has the ability to provide public internet access, at no charge, to a public record in its custody, shall make reasonable efforts to do so.  A custodian state agency shall be required to provide public internet access, at no charge, to the following types of public records in searchable format: (i) final opinions, decisions, orders, or votes from agency proceedings; (ii) annual reports; (iii) reports to the General Court; (iv) notices of regulations proposed under chapter 30A; (v) notices of hearings; (vi) winning bids for public contracts; and (vii) any public record information of significant interest to the general public including, but not limited to, public record information which is the subject of multiple public records requests. 

(b)Every state agency shall prepare and maintain reference materials to enhance access to public records in its custody and enable requestors to make informed requests, including: (i) a reasonably detailed document classification scheme, to be updated annually, outlining categories of records maintained by the agency, whether or not open for public inspection,; and (ii) an index and description of all major databases, document management applications, and electronic recordkeeping and locator systems maintained by the agency, including an indication of which records are publicly accessible, at no charge, on the internet.  Each state agency that maintains a website shall post such reference materials on its website.

(c)The secretary of each executive office shall, on or before January 1, 2017, promulgate rules and regulations to carry out the purposes of this act which shall be applicable to all agencies, departments, boards, commissions, authorities, and instrumentalities within each of said executive offices subject to the approval of the secretary of administration and finance, in consultation with the chief information officer of the commonwealth. Any agency not within any such executive office shall be subject to the regulations of the secretary of administration and finance. The attorney general, the state secretary, the state treasurer and the state auditor shall adopt applicable regulations for their respective departments on or before January 1, 2017.