The short answer is ‘probably yes’ if the content of the email relates to the official business of a government agency or if the email was sent to an employee in any level of state government. It really depends on the email sender and/or recipient and content not its location. Private emails typically should not fall under public records laws.
However, before emails as public records are singled out, it helps to examine what legislation the state government uses to determine what is a public record and what this means for ordinary members of the public. Let’s start with an examination of the state’s main law regarding public records: the Public Records Law.
What is the Public Records Law in Massachusetts?
The state government has rules about what is considered a public record. These rules are covered by the state’s Public Records Law. The law is similar to the federal Freedom of Information Act (FOIA). The Public Records Law sets out what forms of information should be made available on request to the public. The law only considers information created, distributed or held, by a government entity (agency) or a municipality as a possible public record.
Like the FOIA, the Public Records Law was created so that any member of the public, or group of people, has the right to inspect items of information held by the different levels of government. Access is made available on request and payment of a fee to a Records Access Officer (RAO). Information requested must be made available within 10 days of the request unless there are specific reasons why access is denied.
Forms of public record covered by the Public Records Act
The breadth of information types that may be considered as public records and potentially made available to the public on request include:
- books,
- communication in any form, including letters and emails,
- data in any form,
- financial statements,
- maps,
- papers,
- photographs,
- recorded tapes,
- statistical tabulations.
With the exception of certain records and reasons for their access, the Public Records Law allows members of the public as individuals or groups to request inspection of any of the documents in the list above, or copies made of them.
Agencies that are required to provide copies of information subject to the Public Records Law
Municipalities include all towns, cities, consortia, consolidations, local housing, redevelopment or any similar authorities.
Agencies include associations, corporations, individuals, partnerships, or any other entity receiving or expending public funds.
How can a request for a public record be made?
So, now we have established that emails, like any other form of communication, may be considered part of the public record in Massachusetts, but how can you make a request for a copy, if you wanted to do so? You will need to know the agency or municipality holding the information you need (this applies to all forms of public record, not just emails). You can make your request in writing, by ordinary mail, by email or in person at the relevant agency or municipality office. You will need to make your request specific, i.e. provide details of the exact information you want, the format you want the information in, plus your name and contact details. The individual who is responsible for responding to public record requests is known as the Records Access Officer (RAO).
Public record requests must be responded to within 10 business days of the receipt of the request, although in some circumstances, agencies may need an additional 10 business days to search for the information requested.
Agencies and municipalities that do not respond to request could potentially face penalties (of up to a $5,000 fine).
There is no limit to the amount of information requested held as public records.
Fees for public records requests
Agencies and municipalities may charge fees for public record request. The fees are for copying and redacting information, not for reasonable time taken to search for the information and prepare it. Copies of information sent electronically may not incur copying charges.
Exemptions and exceptions to information held as public record
There are limited exceptions and exemptions to the information that may be released on request by agencies and municipalities. The information requested may, for instance, be redacted (i.e. certain parts of the text or other parts of the information blocked out) if it is not deemed that it is necessary to be viewed or it contains sensitive personal information. The agency must then explain that the redaction has taken place, giving reasons for why it has been redacted.
Other exceptions to the release of information of public records include:
- any records which might relate to criminal investigations;
- records that could reveal confidential business information or trade secrets;
- any records that when released could be a safety concern to the public or individuals.
If an exception or exemption has been made to any specific public record request, then this must be explained. You may be able to appeal the exception or deletion by filing an appeal to the Supervisor of Public Records.
For more information, visit our website Mucci Legal or contact us for a free initial legal consultation today.