Failure to comply. Bernard Margolis. President. Boston PL.

       I have received your petition appealing the lack of response of the
City of Boston Library to your public records request.

Massachusetts General Law provides an aggrieved public record requester
two separate and distinct remedies when a custodian refuses or fails to
comply with a public records request.

       The first remedy is judicial in nature and provides for the requester to
petition the Supreme Judicial Court or the appropriate Superior Court
department for an order commanding compliance with the public record request
and the law.

       The second remedy is administrative in nature and provides for the
requester to petition this office for a determination of the nature of the
record and the appropriateness of any claimed custodial exemption.

       When a custodian has failed to respond to a request within the
statutorily mandated timeframe of ten days or has failed to produce any
records or has failed to claim a valid exemption to the public records law,
this office is unable to evaluate the nature of the record.

       The failure of an individual to obey the laws of the Commonwealth may
subject said person to civil or criminal penalties.

This office is not empowered to prosecute persons on behalf of the
Commonwealth for violations of the law.

       Therefore, without any documents to review and without a custodial
exemption claim, an appeal pursuing the administrative remedy is not
possible.

This remedy may become become available in the future is a custodian claims
an exemption AND you believe that such a claim is improper.

Until such time, however, you have a right to proceed with the judicial
remedy described above and as provided by law.

Very truly yours,
Alan N. Cote
Supervisor of Records

pre at sec.state.ma.us

[ Coat of arms
http://www.50states.com/flag/image/nunst034.gif ]

Ense petit placidam svb libertate qvietem
By the sword we seek peace, but peace only under liberty. -Algernon Sydney

The Commonwealth of Massachusetts
William Francis Galvin Secretary of the Commonwealth
Public Records Division

Alan N. Cote
Supervisor of Records

One Ashburton Place 17th Floor
Boston Massachusetts 02108
Tel 617 727 2832
Fax 617 727 5914
http://mass.gov/sec/pre

pre at sec.state.ma.us

Bernard Margolis
700 Boylston Sttreet
Boston Massachusetts 02116

Dear Mr. Margolis:

       This office has received a petition appealing the lack of response of
your institution to a public record(s) request, dated September 23, 2003.

       "Public records" is broadly defined to include all documentary
materials or date, 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.
Massachusetts General Laws chapter 4 section 7(26) 2002 edition
GL c4 s7(26) 2002 ed.
http://www.state.ma.us/sec/pre/prelaw/lawlaw.htm

       THERE IS A PRESUMPTION THAT ALL GOVERNMENTAL RECORDS ARE PUBLIC RECORDS.
GL c66 s10c 2002 ed.
950CMR 32.08(4)
http://www.state.ma.us/sec/pre/prelaw/law950.htm

       A custodian shall, at reasonable times and without unreasonable delay,
permit a public records, or any segregable portion of a record, to be
inspected and examined by any person, and furnish one copy upon payment of a
reasonable fee. See
GL c66 s10a 2002 ed.

       A custodian is required to maintain procedures to avoid unreasonable
delays and to allow inspection and copying by any person during regular
business hours.
Code of Massachusetts Regulations
950CMR 32.05(1)

       A custodian of a public record shall, within ten days following receipt
of a request for inspection or copy of a public records, comply with such
request.
GL c66 s10b 2002 ed.

       In Globe Newspaper Co. v. Commissioner of Education, 439 Mass. 124 (2003),
439 Massachusetts Reports 124 (2003)
http://www.socialaw.com/sjcslip/sjcApr03d.html
the Supreme Judicial Court concluded that the release of public records
within ten days of the receipt of a request to inspect or copy them is
presumptively reasonable.
Ibid at 125

       The failure of a custodian to comply with a public record request by
refusing to allow inspection or by refusing to provide a copy of a public
record may be a violation of law which may subject you to criminal or civil
penalties.

       The requesting party has been notified of his right to seek an order
from the Supreme Judicial Court or the appropriate Superior Court department,
compelling you to comply with his request.

It is strongly suggested that you contact the requesting parties and make
arrangements for an inspection or release of the records(s) requested.

Very truly yours,
Alan N. Cote
Supervisor of Records

pre at sec.state.ma.us

[ Coat of arms
http://www.50states.com/flag/image/nunst034.gif ]

Ense petit placidam svb libertate qvietem
By the sword we seek peace, but peace only under liberty. -Algernon Sydney

The Commonwealth of Massachusetts
William Francis Galvin Secretary of the Commonwealth
Public Records Division

Alan N. Cote
Supervisor of Records

One Ashburton Place 17th Floor
Boston Massachusetts 02108
Tel 617 727 2832
Fax 617 727 5914
http://mass.gov/sec/pre

pre at sec.state.ma.us

Syndicate content