By Colman Herman, contributing writer, CommonWealth magazine
As someone who has filed many Massachusetts public records requests, I have developed certain narratives that help me get the records I need for my reporting. I would like to share them with you.
When public officials withhold documents, they must claim one of the numerous exemptions and, very importantly, they must explain how and why the exemption applies. To that end, in my public records requests, I remind officials of this obligation with the following statement.
” ‘If a records custodian claims an exemption and withholds a record, the records custodian has the burden of showing how the exemption applies to the record and why it should be withheld.’ (emphasis added) A Guide to the Massachusetts Public Records Law, Secretary of the Commonwealth, Division of Public Records, Updated March 2009, p. 1. A mere restatement of the wording of the exemption does not comply with the law.”
I also remind public officials that if some — but not all — of the information contained in a document is exempt, they must reveal what is not exempt. And so I include the following statement.
” ‘Where exempt information is intertwined with non-exempt information, the non-exempt portions are subject to disclosure once the exempt portions are deleted.’ A Guide to the Massachusetts Public Records Law, Secretary of the Commonwealth, Division of Public Records, Updated March 2009, p. 9.”
I further remind public officials that they have 10 days to respond. But depending on the extent of the request, 10 days may not be a realistic time frame for them to produce the requested documents. But at the very least, public officials must acknowledge receipt of your public records request within 10 days. When I get an acknowledgement that contains a general statement such as, “We are working on your request,” I have sometimes found it wise to respond as follows.
“The public records law does not contemplate such an open-ended response. And so I would appreciate your estimate as to when the records will be produced.” I invoke such a statement when my past experience with the agency has been one of them dragging their feet.
One other tip. When I encounter difficulty in getting answers to questions from public officials, I ask them if it would facilitate matters if I converted my questions into a public records request. That strategy often works. But when it doesn’t, I submit the public records request.
I refrain from employing the above statements when my past experience with an agency has been positive, which includes them understanding the public records law, complying with what is required, and not prone to playing semantic games.