By Kristin Billera

Employees of the administration of Boston Mayor Thomas Menino could be in serious trouble for their violations of Massachusetts’ public records law. The administration was warned last year by Superior Court Judge Ralph Gants to discontinue their practice of deleting emails, which violated state law; however, it appears that city employees continued to delete their emails.

Several months later, after Gants brought attention to this matter, the Boston Globe sought to obtain emails from Michael Kineavy, Menino’s chief of policy and planning. The request only yielded 18 emails, for a period of time between October 1and March 31 and that the other emails were no longer on the city servers because Kineavy put the emails in his trash folder and then emptied the folder before the messages were backed up on the city servers. Secretary of State William Galvin ordered the city to take action to attempt to recover the missing emails by September 25 and the city responded by hiring a computer forensics firm.

Under Massachusetts law M.G.L. 4 §7(26), public records are “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…” Whoever doesn’t comply with the laws governing public records may be punished by a fine up to $500 and up to a year in prison.

Apparently, before May, the city did not have formal policies on saving emails and employees were encouraged to attend training on complying with the public records law; however, it is quite clear by the words “political subdivision” in the Massachusetts General Laws that the city of Boston is subject to the state public records law. There are only a number of types of documents and media that are exempt under M.G.L. 4 §7(26) from this law. Many are similar to the traditional FOIA exemptions such as medical records, ongoing investigations, trade secrets and internal personnel rules and practices. Other exemptions include the “names and addresses in any application for licenses to carry or possess firearms”, proposals and bids for contracts until the time that the bids can be opened publicly, questions, answers and scoring keys to tests (presumably MCAS), and “notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit.”

From even the most simplistic reading of the statute, it is clear that Kineavy and other employees have been blatantly flouting the law, for whatever reason. It is incredible that the city of Boston had no formal public records policy, despite the fact that the city and its employees, being a “political subdivision” of Massachusetts are subject to state law. It makes one wonder what other documents in the Commonwealth have also gone “missing.”

See also Public Records Law from the Massachusetts Secretary of State.