The Public Records Law: A Powerful Pre-Discovery Tool

The Massachusetts Public Records Law (or PRL) provides an often overlooked, simple, cost effective and powerful tool for litigants to investigate claims and gather pertinent documents even before the commencement of a lawsuit. Like its federal analogue the Freedom of Information Act (or FOIA), the Massachusetts PRL allows anyone to request any records generated, received or maintained by a Massachusetts governmental agency, department, or subdivision, whether in electronic or paper form, including computer records, electronic mail, video and audiotapes. I have found that in many business disputes, using the PRL, I can quickly and inexpensively uncover valuable information that can inform strategy and save my client the need to chase the same material via the formal litigation discovery process.

The variety of potentially useful public records available for the asking is vast. One can request permitting records, records pertaining to state issued professional licenses, publicly filed corporate records, town meeting records, records concerning agency decisions or action on any number of topics, among many other types of documents. And, under the PRL, the responsible governmental record custodian receiving such a public records request must respond without unreasonable delay, and in any event within just ten days. Compare that to the thirty days and added formality of a discovery request directed to a party in litigation. The public record custodian must either grant or deny the request, and if agreeing to provide the records, the custodian must provide an estimate of the cost to assemble and reproduce them.

Under the PRL, records in the hands of a governmental entity are presumed public and subject to production unless they fall within a specifically enumerated "exemption" from the PRL. A record custodian can deny a request or withhold portions of requested records if the records fall within one of these exemptions (see General Laws chapter 4, section 7(26)). Records that might unduly jeopardize a person's privacy, records pertaining to an ongoing agency "deliberative process" or records concerning an ongoing law enforcement investigation, among some others, may be withheld. Moreover certain voluntarily provided commercial trade secrets and financial information may be withheld.

The PRL's exemptions notwithstanding, in many cases a few well targeted public records requests can very quickly yield a bounty of useful materials as one prepares for battle in court.

For more information on the Massachusetts PRL click here.

For more information about the Fitch Law Partners LLP business litigation practice, click here.

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