By Robert A. Bertsche and Jeffrey Pyle
This New Year’s Day, journalists in Massachusetts can look forward to more than just a hangover: They’ll have a new public records law to try out.
Like a night of epic carousing, the “Act to Improve Public Records,” which goes into effect January 1, has upsides and downsides. It establishes a presumption (not a requirement) that successful records requesters will be awarded their attorneys’ fees if they prevail in a lawsuit. It even carries the threat of punitive damages if a custodian withholds records in bad faith. The law also puts some limits on the fees that agencies and municipalities can charge. On the other hand, it extends the time that public entities can take to provide public records: Municipalities can now take more than a month in some cases. The law also leaves some room for custodians to charge exorbitant hourly rates for their employees or outside counsel to search for and redact records.
Until we can demonstrate the need for new legislation to give the public records law even sharper teeth, journalists will need to use the tools provided in the new law. Here, then, are a few tips on how to take advantage of some of these new provisions — and how to avoid some traps for the unwary. (If you have others, feel free to share them in the comments.)
1. Make your request to the “Records Access Officer.”
Under the new law, every agency and municipality must appoint at least one Records Access Officer (“RAO”) to facilitate access to records. This provision was intended to ensure greater accountability for compliance and prevent the government from giving requesters the runaround. However, some journalists and members of the public enjoy relationships with employees who regularly provide them immediate access to documents without bureaucratic hassle, and they may not want to start directing all their requests to an RAO, who may or may not be as access-friendly.
If you have such a relationship, you can continue to use it; the law says the appointment of an RAO does not “prohibit employees who have been previously authorized to make public records or information available to the public from continuing to do so.” However, the law (probably unintentionally) goes on to impose specific obligations only on RAOs, including the obligation to provide records electronically and the power to “waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest.” The drafters of the law likely did not intend to limit such obligations and powers only to RAOs, but submitting your request to someone else may give the public entity an argument that you’re not entitled to some of the benefits of the new law. One option is to turn to your established relationships first, but, if you encounter resistance, route the request to the RAO.
2. Designate your preferred electronic format in your request letter.
As noted above, the new law says that RAOs “shall, to the extent feasible, provide the public record in the requestor’s preferred format or, in the absence of a preferred format, in a searchable, machine readable format.” This is a good provision, especially for data-driven journalists. It is probably always “feasible” to export a government database into Excel so the data can be organized, filtered, and sorted in a useful way. This provision should end the common practice whereby agencies try to stymie analysis by printing out large spreadsheets and providing them in paper form, or by converting them to pdfs.
To get the benefit of this provision, it’s a good idea to identify your “preferred format” in your request letter, especially if you’re seeking big files. If custodians ignore your request to use your preferred format, consider appealing to the Supervisor of Records.
3. Carefully check the timing and contents of the response.
One of the major defects of the old public records law was that records custodians could simply ignore requests beyond the required 10-day response period and suffer no consequences. Under the new law, a failure to respond within 10 “business days” will prevent an agency or municipality from assessing a fee for any records ultimately provided — no matter how many hours it takes staff to comply with the request.
In addition, subsection (b) of the statute expands the information the records custodian must provide in a response to a request if it does not provide the records within 10 business days. Specifically, the RAO must:
• identify the categories of documents the entity intends to produce or withhold;
• if more time is needed, provide a “detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records”; and
• provide an “itemized, good faith estimate” of fees to be charged.
Importantly, the law provides that no fees may be charged unless the RAO responds to the initial request “under subsection (b)” within 10 business days, and that subsection requires that the response “shall” include all required information. Thus, if a records custodian issues a 10-business-day response but does not include the required information, no fee may be charged. Requesters should check responses carefully to see whether all information is provided, and should use any failures to argue that any fee should be eliminated.
For requests to state agencies (as opposed to municipalities), the response time is actually shorter than 10 business days. Under a July 2015 directive by Gov. Baker, agencies are supposed to determine by the fifth business day after a request whether “the agency believes it will take longer than 10 days and/or cost in excess of $10 to produce responsive documents.” If so, “the RAO should contact the requester by that fifth day to confirm that the agency fully understands the request and optimal search terms, and to see if the requester wants to adjust the request in any way, maybe by narrowing its scope.” Gov. Baker’s directive has not been superseded by the new public records law, so agencies are subject to both 5-day and 10-day turnarounds.
4. Consider whether to skip an appeal to the Supervisor of Records.
One of the greatest achievements of the new public records law is the ability to recoup attorneys’ fees and costs if a requester successfully sues for access. As the advocacy group Common Cause and many others have pointed out, attorneys’ fee provisions impose financial consequences for wrongful denials, giving the government an incentive to take the law seriously.
Early versions of the legislation proposed mandatory fee-shifting, but the Legislature ultimately enacted a “presumption” for fee-shifting that can be overcome only in certain circumstances, including where the Supervisor of Records finds that the agency or municipality did not violate the law. In other words, if a requester is denied records and loses an appeal to the Supervisor, but then sues in court and wins, there is no presumption of attorneys’ fees — the court can simply award or deny them in its discretion. Absent such an unfavorable ruling from the Supervisor, the presumption is lost only if there’s an Attorney General or appellate court opinion on “similar facts” denying access, or if the request is for either strictly commercial or “harassment” purposes.
In the few cases where requesters have sued after losing a Supervisor appeal, they have had good success (because the Supervisor has often been wrong). Thus, requesters who are denied access should carefully consider whether they’re likely to increase or decrease their leverage by appealing to the Supervisor. If the Supervisor has ruled against access in a similar case, requesters may want to skip the appeal and keep the threat of attorneys’ fees alive. Thankfully, Supervisor decisions are now available online, though they are not yet full-text searchable. Using that database, you can see if an appeal is likely to be a benefit or hindrance to your case.
5. Beef up those appeal letters.
The new law states that when an appeal is filed, the Supervisor of Records “shall issue a written determination . . . not later than 10 business days following receipt of the petition.” This provision is intended to require prompt resolution by the Supervisor and a prompt response by the government to any petition if it’s going to have its point of view considered. The standard is clearly achievable: In theory, an agency or municipality should have carefully determined why the records are not subject to disclosure before issuing a denial letter, and the Supervisor’s office is supposed to know what the law requires.
The Supervisor, however, has tried to extend his time frames by issuing draft regulations redefining what it means to “receive” an appeal. Under the draft regulations, once an appeal is “reviewed and approved, the Supervisor shall issue an appeal number associated with each appeal submitted by a requester”; the appeal “will be considered received by the Supervisor once an appeal number is assigned”; and a decision will issue “not later than ten business days following the date an appeal number is assigned.”
This provision is clearly inconsistent with both the letter and the intent of the legislation: The Supervisor has no power by regulation to help himself to an indefinite extension of a statutory deadline. Andrew Quemere and Maya Shaffer of DigBoston pointed out this problem in comments to the Supervisor’s office. Stay tuned to see whether the provision remains in the final rules.
Regardless of how the extension controversy is resolved, a 10-business-day turnaround time means a requester probably only has one shot to argue that a denial was improper — and that’s in the appeal letter. Under the old law, a requester might have had an opportunity to respond to reasons for denial by the public body before a Supervisor’s decision issued. But with a time frame of 10 business days running from the receipt of the appeal, there may not be such an opportunity.
Accordingly, it’s now a good idea to put all your arguments for access, along with appropriate citations to case law and prior decisions by the Supervisor, in your initial appeal letter. You have 90 days from a denial to file your appeal, so take the time to make it count.
Robert A. Bertsche and Jeffrey Pyle are attorneys at the Boston law firm Prince Lobel Tye, LLP. Bertsche is also a member of the New England First Amendment Coalition’s Board of Directors.
Photo above courtesy David Rosen.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here. Major Supporters of NEFAC for this year include: The Robertson Foundation, The Providence Journal Charitable Legacy Fund, The Boston Globe and Boston University.