Attorney General Releases Report on Boston City Hall E-mail Destruction

Attorney General Coakleys Office recently released a final report on the review of Boston City halls E-mail flap from last year. For those who dont remember, during the election allegations that an aid to Mayor Menino had violated the law by destroying e-mails related to disgraced former Senator Wilkinson in violation of ch 66 the Public records law. Its an interesting read and outlines the statute that many police only remember because its one of the few misdemeanors arrestable in the past.

In the report she concludes “The investigation focused on a specific task: determining whether Kineavy’s deletion of email was a crime. Given all the facts revealed in the investigation, we did not find that the facts supported a criminal case against Kineavy. More specifically, we did not find that his actions warranted a charge of unlawfully destroying public records in violation of G.L. c. 66 § 15.”

The investigation is interesting in that it covers the ground very rarely seen, the Public Records law and how it should be applied. In describing the law it states “The public records law, as a whole, expresses the Legislature’s “considered judgment that the public has an interest in knowing whether public servants are carrying out their duties in an efficient and law-abiding manner,” and that “greater access to information about the actions of public officers and institutions is increasingly . . . an essential ingredient of public confidence in government.” Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444, 453 (2007), quoting Attorney General v. Collector of Lynn, 377 Mass. 151, 158 (1979) and New Bedford Standard-Times Publ. Co. v. Clerk of the Third Dist. Ct. of Bristol, 377 Mass. 404, 417 (1979) (Abrams, J., concurring).

The current version of the statute imposes a fine or term of imprisonment on whoever “unlawfully . . . alters, mutilates or destroys any public record.” G.L. c. 66, § 15. Although section 15 is broad, three things limit its reach. First, it applies only to “public records.” Generally, public records are “documentary material or data, regardless of physical form or characteristics” that are “made or received” by a public official, G.L. c. 4, § 7(26), and the term has been interpreted to include email. 3 There are, however, exemptions to this definition. See G.L. c. 4, § 7, cl. 26 (listing exemptions, such as personnel and medical files and information). Thus, not all materials “made or received” by public officials, whether paper or electronic, are “public records.”
Second, section 15 applies only to the “unlawful” destruction of public records. The government is not required to keep all its records forever. Rather, public records are preserved in accordance with maintenance schedules promulgated by the Supervisor of

The public records law, as a whole, expresses the Legislature’s “considered judgment that the public has an interest in knowing whether public servants are carrying out their duties in an efficient and law-abiding manner,” and that “greater access to information about the actions of public officers and institutions is increasingly . . . an essential ingredient of public confidence in government.” Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444, 453 (2007), quoting Attorney General v. Collector of Lynn, 377 Mass. 151, 158 (1979) and New Bedford Standard-Times Publ. Co. v. Clerk of the Third Dist. Ct. of Bristol, 377 Mass. 404, 417 (1979) (Abrams, J., concurring).The current version of the statute imposes a fine or term of imprisonment on whoever “unlawfully . . . alters, mutilates or destroys any public record.” G.L. c. 66, § 15. Although section 15 is broad, three things limit its reach. First, it applies only to “public records.” Generally, public records are “documentary material or data, regardless of physical form or characteristics” that are “made or received” by a public official, G.L. c. 4, § 7(26), and the term has been interpreted to include email. 3 There are, however, exemptions to this definition. See G.L. c. 4, § 7, cl. 26 (listing exemptions, such as personnel and medical files and information). Thus, not all materials “made or received” by public officials, whether paper or electronic, are “public records.”Second, section 15 applies only to the “unlawful” destruction of public records. The government is not required to keep all its records forever. Rather, public records are preserved in accordance with maintenance schedules promulgated by the Supervisor of Public Records and the state Records Conservation Board. G.L. c. 66, § 8. Thus, public records may be “lawfully” destroyed.

Third, and most importantly for purposes of this report, section 15, is a criminal statute. To sustain a conviction under it, the prosecution must prove that the person charged had a certain state of mind; that is, it must be proven that the person knew that he or she was “destroying” public records.”

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to RSellon@PoliceLegalPromotions.com
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