Remember when our 20th-century mayor had all those problems with e-mail?

"fixed" in record time!

I don't see John Connolly rising from his own ashes to run successfully. Or any members of the beloved City Council. There aren't many people with city-wide profiles to mount a strong effort. Marty's been fundraising and profile-building since Day One, and he's not going to lose because the Globe wants to see his cellphone.

This would not be a Freedom of Information Act issue, but rather a Massachusetts Public Records Law issue. Yes, the Massachusetts statue parallels FOIA, but there are differences. The main difference is that FOIA applies to the federal government.

Unless a particular exemption applies, generally every record made or received by a government employee (the mayor and his chief of staff for example) are presumed to be public records. Now, the public records law does not create an independent requirement to create new records (like voice recordings). That said, if there were a voice recording and it was not exempt and a proper request was made, it would be a public record subject to disclosure.

The requirement for disclosure is does not turn on whether you use a phone, computer, pen and paper, or pencil, etc. The determining factor, again assuming an exemption doesn't apply, is whether it is a record received or made by a government employee.

... as of my last federal job in 2013, if notes taken or forms completed during a phone conversation were subject to agency retention rules, then they are FOIAable. Recorded calls would be, but recorded calls are very rare. That does not mean that other factors, like the Privacy Act, might not also come into play with both audio and written info, though.

Three examples:

1) You decide to visit the Grand Canyon. Someone in your party is on crutches. You call the National Park Service GC office to find out what preparations need to be made. If that NPS office logs calls, then your name and the time will be logged, and perhaps that the call was routed to visitor services. The visitor services ranger makes notes, then when the call is finished, fills out the form to be left with the gate agent letting them know your car gets a handicapped tag for parking and a courtesy wheelchair. No additional instructions re needed.

--The phone log is FOIA-able, though if you request it, other names may be marked out because of the Privacy Act.
--- The notes taken of information needed to complete the request form are not FOIAble under these circumstances, because...
-- The request form is FOIAble but would quite possibly be protected in part under the Privacy Act: if the name of the person requiring the wheelchair is included, that name would probably be sanitized out.

2) You call the Bureau of Land Management to find out who owns property near a reservation you're interested in buying, and you're pretty sure mineral rights are optioned with the property. The BLM officer takes notes of the location you're interested in, your name and a call back number, then tells you he will send you the paperwork needed to fill the request. You then accuse the BLM officer of covering for the land owner, of being obstructive, and you say you are going to notify your congressman that the officer didn't help, and you will file a FOIA for the information.

--All notes during a call like this are retained, at least for a little while, and are possibly subject to FOIA. Because the material is not yet redundant elsewhere (on a form, for example), because the convo took a turn and is no longer boilerplate, the notes have to be kept. If the caller had simply provided his info then waited for the forms, then only the cover letter for the form and the call log would need to be maintained in most agencies.
- The notes do not need to be kept forever, though. If the agency retention schedule directs that they can be trashed after 3 years, they are not obliged to retain them longer just because a FOIA was threatened.

3) A benefits rep at Social Security calls the VA to find out if an annuitant who has delayed getting Medicare past the deadline has been covered under VA benefits. The VA confirms that he has, so the rep calls Medicare to see if the late enrollment penalty can be waived. Upon finding out that having VA coverage is not an acceptable reason to delay Medicare under the regulations, the rep calls the annuitant. The annuitant then wants to file a complaint with Medicare.

--- All the calls in this case should have been logged and those logs retained, and at least brief synopsis of the info gathered in each call, and all would be FOIAble, subject to HIPAA and Privacy Act restrictions.

In general, notes taken during a phone conference, Skype meeting, or call are FOIAble so long as they would have been if all the transactions were face-to-face. Other factors can apply, of course, like national security regulations, disclosure agreements made between heads of state and ratified by treaty, or the Privacy Act, so simply being requestable does not mean the request won't be validly denied, if necessary.

Which gets to why agencies do not record phone calls. Not only is the expense of maintaining audio records much, much, much higher than simple paper or e-records, but the issues that arise with recordings are much, much, much more complicated. Imagine that last Social Security call-- and imagine that the annuitant breaks down and cries during it. You may not think about it this way, but even if no words are different during the call than if the annuitant stayed cool & collected the whole time, the annuitant may feel more exposed, and if that recording were somehow made public, or even shared for practical purposes within an office, it would embarrass him. He would possibly feel his privacy is at risk.

But, frankly, recording calls simply is not feasible within federal agency budgets. Retaining those recordings would cost a fortune-- at my last federal job, I was on the phone, mostly with clients, 8+ hours/4 days a week, and 5+ on Fridays. Most of what I talked about was covered under HIPAA or the Privacy Act. Going into the logistics of what maintaining audio files with sensitive information would require would mean I'd be typing this all week, but the NARA website has some info on it if you're interested.

There's a balance that has to be found in each federal agencies, between fulfilling their mission and recording what is done in the course of doing so.

Why Massachusetts has not developed FOIA regs modelled on federal is beyond me. It is not free-- retaining and archiving even records that don't suck up storage and memory like audio incurs costs-- but that's no reason to avoid it. Hell, it's one thing most people would happy to be taxed for.