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Copyright Status: Light green

What is the law?

Binding, on-point law (about)


Advisory sources (about)

The Massachusetts Secretary of the Commonwealth has said that "Records created by Massachusetts government are not copyrighted and are available for public use." The scope of this statement is not completely clear. Under state law, "[t]he state secretary, clerks of the county commissioners and city or town clerks shall respectively have the custody of all other public records of the commonwealth or of their respective counties, cities or towns, if no other disposition of such records is made by law or ordinance." Mass. Gen. Laws Ann. ch. 66, §7. The statement of the Secretary may then only apply to records at the state level.

Public records law (about)

Massachusetts first enacted a statutory right of access to public records in 1851. The current public records law may be found at M.G.L.A. 66 §1.

Does the public records law restrict the use of disclosed records?

Massachusetts regulations prohibit records custodians from requiring requestors to provide any information prior to complying with a records request. 950 Mass. Code Regs. 32.05(5). To reiterate the point, the language employed by the court in Coleman v. Boston Redevelopment Authority is illustrative: "there is no requirement of 'standing' by the person who requests production of records or any issue about the person's motives or purpose in making the request." Coleman v. Boston Redevelopment Authority, 809 N.E.2d 538, 542 (Mass. App. 2004). Whether this includes commercial purposes is not completely clear. The Secretary of the Commonwealth guide to the public records law says that, "all requests for public records, even if made for a commercial purpose or to assist the requester in a lawsuit against the holder of the records, must be honored in accordance with the Public Records Law." Secretary of the Commonwealth, A Guide to the Massachusetts Public Records Law, 7 (2013). Massachusetts regulations, however, state that, "[t]he Supervisor may decline to accept an appeal from a requester if, in the opinion of the Supervisor, the public records request is made solely for a commercial purpose." 950 Mass. Code Regs. 32.08. Records may be exempted from public records disclosure by statute. M.G.L.A. 4 § 7 sec. 26(a).

Specifics and examples (about)

Status Applies to... Based on?
Copyrightable by statute Intellectual property of the University of Massachusetts Mass. Gen. Laws Ann. ch. 75, §14A
Copyrightable by a third party by judicial decision Privately-created architectural plans incorporated into a restrictive covenant John G. Danielson, Inc. v. Winchester-Conant Properties, Inc., 322 F.3d 26 (1st Cir. 2003) This case does not directly address the copyright status of documents created by the government, since the documents in controversy were created by a third party. What it does hold is that third parties may retain their copyright in materials which are incorporated into some types of law. Judicial decisions and statutes clearly fall in the public domain; for a review of cases, see Bldg. Officials & Code Admin. Int'l, Inc. v. Code Tech., Inc. ("BOCA"), 628 F.2d 730, 733-34 (1st Cir.1980). But beyond this, there is no established delineation as to what kinds materials incorporated into what kinds of laws would trigger copyright protection or a lapse into the public domain. For contrasting rationales, see Veeck v. S. Bldg. Code Cong. Int'l, Inc., 293 F.3d 791, 793 (5th Cir.2002) (en banc), holding that upon being adopted as a law, a model code falls into the public domain; however, in Practice Mgmt. Info. Corp. v. Am. Med. Ass'n, 121 F.3d 516, 518-20 (9th Cir.1997), the court felt that a proprietary classification system does not fall into the public domain simply by its inclusion into Medicare and Medicaid regulations. Across the circuits, courts have hinted one way or another but there is no conclusive standard on this issue.
Excluded from public records disclosure by statute "records of the general court..., declarations, affidavits and other papers filed by claimants in the office of the commissioner of veterans' services, or records kept by him for reference by the officials of his office" M.G.L.A. 66 §18
Excluded from public records disclosure by statute "the names and addresses of persons who own or possess firearms, rifles, shotguns, machine guns and ammunition therefor, ... and names and addresses of persons licensed to carry and/or possess the same to any person, firm, corporation, entity or agency except criminal justice agencies ... except to the extent such information relates solely to the person making the request and is necessary to the official interests of the entity making the request. M.G.L.A. 66 §10(d)

Additional things to consider (about)

Specific records are referred to as "property of the Commonwealth" several times in the Massachusetts code: M.G.L.A. ch. 29A, §2 ("All books, papers, equipment, furnishings, uniforms, supplies, records and documents purchased by the counties and in the custody of or maintained primarily for the use of the judicial branch are hereby declared to be the property of the commonwealth"); M.G.L.A. ch. 8, §18 ("Whenever any such department ceases to exist, its records, papers, relics and other effects shall become the property of the commonwealth"); M.G.L.A. ch. 221, §32 ("cash books … shall be the property of the commonwealth").

Massachusetts law provides for the mandatory return of records wrongfully withheld from a records custodian, M.G.L.A. ch. 66 §13, and provides penalties for wrongful withholding. Mass. Gen. Laws Ann. ch. 66 §15.

Where else to go




Administrative Rules