Open Records in Massachusetts

Open records laws in Massachusetts is governed by the Massachusetts Public Records Law. The Act to Improve Public Records (St. 2016, c.121 (H4333)) went into effect on January 1, 2017 and placed greater demands on government in terms of transparency and open record requests.

How Massachusetts Defines a Public Record
The Massachusetts Public Records Law defines public records broadly to include electronic data such as website and social media content as well:

“Public records” shall mean all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose.”

The state of Massachusetts has also provided departments and agencies with a social media legal guidance toolkit which states that:

“Social media sites will contain communications sent to or received by state employees and are therefore public records subject to the Records Retention law. These retention requirements apply regardless of the form of the record (digital text, photos, audio, or video, for example)… Ensure that your agency retains a copy of the social media content in accordance with the Records in Common Schedule. Review your third party social media service provider’s terms of service for its records retention practices. Note that while third party social media providers will most likely save your content for some period of time, they generally will not save it indefinitely. To the extent that their policies are inconsistent with the Records in Common schedule, your agency should retain copies of social media posts…”

Social Media Guidance Documents
The abovementioned Social Media Legal Guidance Toolkit is a valuable resource for agencies and departments looking for best practices around social media management. The following regulations and guidelines are also worth examining:

• 940 CMR 11 Fair Information Practices Act
• 950 CMR 32 Public Records Access Regulations
• 950 CMR 33 Information Practices Regulations
• Public Records Requests Memo (2017-08-27)

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