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Massachusetts' Public Records Law and Universal Access
Monday, November 28 2005 @ 01:33 AM EST

I was thinking about public access to government documents. The disabled have a statutory right of access, but what about the rest of us? Let's think about Massachusetts. Do I have such a right, if I live in Massachusetts? If so, do I, as a non-Microsoft user, have a right to access digital records using my operating system of choice? Or can the government make choices that force me to buy Microsoft products in order to gain access to those records?

To find an answer to that question, I went digging, and I came upon Massachusetts' Public Records Law [PDF], and I also found a Guide [PDF] explaining the law in plain English that Secretary of the Commonwealth, Public Records Division, William Galvin provides on his department's website.

Now, I'm not a lawyer, but I note the Guide says *every* person has "an absolute right of access to public information". That sounds like it would mean me, even if I do use a GNU/Linux operating system. And you, if you do too. And all the citizenry in the Commonwealth and beyond.

I see it also says that there is no distinction in the law between paper and digital records in terms of right of access. Hmm. That sounds to these non-lawyer ears like I have a right of digital access. So wouldn't that mean they'd have to make records available to me and all of us who use the GNU/Linux operating system, if that is what we use? Otherwise, it's a right with no meaning. I have to be able to read the records once they provide them. Or can the state in effect force us to buy a certain favored vendor's product in order to access our records? For that matter, can they favor just one vendor and tell those of us who don't use that vendor's products that we don't count? The statute seems to be saying otherwise.

I wonder how many GNU/Linux users there are in Massachusetts? I don't know, but there are certainly many, many citizens who don't use Microsoft products living in the Commonwealth of Massachusetts. If there are MA LUGs out there, do you have any idea about numbers?

Please let me show you some excerpts from the guide, beginning on page 11, so you can see what I mean.

I've put other page numbers in brackets, so you can verify:

The Massachusetts Public Records Law provides that every person has an absolute right of access to public information. This right of access includes the right to inspect, copy or have copies of records provided upon the payment of a reasonable fee.

Overview of the Massachusetts Public Records Law.

The Massachusetts General Laws broadly define “public records” to include all documentary materials or data, regardless of physical form or characteristics, which are made or received by any officer or employee of any Massachusetts governmental entity. As a result, all photographs, papers and electronic storage media including electronic mail of which a governmental employee is the “custodian” constitute “public records.”...

Does the Public Records Law apply to computer records? [p. 9]

Yes. The term “public records” is defined by statute to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any municipality or agency of the Commonwealth, unless falling within a statutory exemption. Therefore, the Public Records Law clearly applies to government records generated, received, or maintained electronically, including computer records, electronic mail, video and audio tapes.

Computer Records [p. 27]

The Public Records Law was drafted at a time when legislators could not have envisioned the impact computers would have on the government’s ability to collect, store, compile and disseminate information. The legal principles embodied in the Public Records Law, however, may be readily transposed into legal principles governing access to information maintained in an automated system.

The statutory definition of “public records” does not distinguish between traditional paper records and records stored in the computer medium. Rather, it provides that all information made or received by a public entity, regardless of the manner in which it exists, constitutes “public records.” Computer cards, tapes or diskettes are all independent public records that are subject to the same requirements of the Public Records Law as are paper records. Therefore, a custodian is obliged to furnish copies of non-exempt portions of computerized information at the cost of reproduction unless otherwise provided by law.

It should be noted, however, that just as a custodian is not required to create a paper record in response to a request for information, a custodian is not required to create a computer record in response to a request for information. Conceptually, a computer is like a large filing cabinet. The “files” in the cabinet consist of any compilations of information contained on a tape or a diskette which can be independently retrieved through the use of existing computer programs.

A custodian is only obliged to provide access to the existing “files” of a cabinet. Therefore, a custodian is not required to create a new computer program to provide a requester with computerized information in a desired format. There is, however, an exception to this general rule when the reprogramming is needed to comply with the segregation provision of the law.

For example, suppose a request is made for a computer diskette which references all woman homeowners who also own dogs. The custodian, however, does not have a computer program which allows him to combine his dog license information with the assessor files to select the desired information. Providing the requested information in the desired format requires the creation of a new program. In this situation, the custodian is only obliged to notify the requester that there is no specific record which is responsive to his request. The custodian should also advise the requester of the available formats and let the requester determine which of the existing formats or “files” is best suited for his needs.

It should be noted there is nothing which prevents a custodian from creating a program which will generate requested information in the desired format. In fact, the custodian can benefit from such an arrangement. Since the creation of records, including the honoring of prospective requests are not governed by the Public Records Law, including its maximum fee limitations, the custodian is free to negotiate all terms of the arrangement. Consequently, when a requester is willing to pay for the creation of a program, the custodian is able to add a new program to his library without any expense to the government. Once that program is created, future requests for the same information would fall within the fees set by regulation.

I read this to be saying that if there is a paper document, you can't insist that they create a digital one. Maybe one might argue that preexisting digital records kept in MS' proprietary formats might be acceptable, without change (although they'd probably have to provide the record as paper or in some other fashion make them available) on legacy materials, when it comes to deciding on what standard to adopt *going forward*, universal access would be required.

If my understanding is correct, then no wonder Massachusetts chose ODF. Under this statute, would they have any choice? The goal is universal access. Can Microsoft provide it? If Massachusetts were to adopt a digital standard that in practice penalized or excluded GNU/Linux users, which Microsoft's previous license did, especially when there is an open standard, ODF, that is universally usable by everyone, would that be legal under this statute? I don't see how. Maybe some of you lawyers out there can see something I don't.

I suppose Microsoft could get some friends to rewrite the law just for them, but other than that, I think the beautiful Commonwealth of Massachusetts is stuck with ODF. Or, now that Microsoft is making not-yet fulfilled promises of greater openness, another hilarious possibility: if Microsoft can open its XML enough that it is universally usable by all, with no display degradation, no interoperability issues, and no DRM or patent minefields penalizing GNU/Linux users, then I think it could qualify under this statute, but if they were to play the kinds of games we've come to associate with Microsoft, with negative results for GNU/Linux users, I think they'd exclude themselves under the statute. Or they could just throw in the towel and support ODF.

How delightful. Microsoft forced to be really open, or else. Should that true openness happen, I'd like to be the first to greet them and say, Welcome to the Free World.

No chair throwing, though. We have standards here.

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