Now is Time to Reform Public Records Law; Senate Needs to Make Most of Opportunity

By Justin Silverman

silvermanThe Massachusetts Senate released this week a bill that could help fix our broken public records law. While the legislation (S.2120) is much stronger than the lackluster proposal by the House last year, the Senate needs to now decide the fate of the many proposed amendments that could drastically affect the future of open government in the Commonwealth.

It’s a debate four decades in the making. Massachusetts enacted a law in 1973 that required any government record to be presumed public unless it could be withheld under narrow statutory exemptions or common law privileges. That was the Commonwealth’s first significant public records law reform — and its last.

During the next 43 years, Massachusetts lost its way. The number of exemptions in the law increased. Governors declared themselves excluded from the statute. Agencies began charging unreasonable and prohibitive fees for records. The public found little recourse to enforce the law when unjustly denied information. Among many other problems, the law itself became routinely ignored, abused and disregarded as ineffective.

This long erosion of rights earned Massachusetts an F last year from the Center for Public Integrity, a non-profit news organization that ranked each state on the public’s accessibility to government information. Massachusetts ranked 40th overall, though that may be generous.

A recent audit of public records law compliance — conducted by Northeastern University students with help from The Boston Globe and WCVB — found that 58 percent of all municipalities failed to respond to a request within the required 10 days. Nearly 25 percent took 40 days or more to respond, or never did so at all. More than a dozen outright refused requests for records generally considered public.

There is now widespread agreement that a fix for our public records law is long overdue. The political appetite for reform is perhaps the strongest it’s ever been. Secretary of State Bill Galvin, whose office oversees the state’s Division of Public Records, said that the “best solution would be if the Legislature acts very promptly.” Clearly the time is now.

A bill proposed by Rep. Peter Kocot of Northampton (and an identical one introduced by Sen. Jason Lewis of Winchester) last year set us on the right track. His legislation would have catapulted the Massachusetts public records law back into respectability. It would have promoted access to records in electronic form. It would have assigned record access officers to streamline responses to requests within each agency. It would have lowered costs for requesters. It would have required attorneys’ fees when records are wrongfully denied.

But that legislation, like the transparency envisioned in 1973, is in the past. Kocot’s bill evolved into what some consider to be a potentially worse law than we have today. While the House kept some of Kocot’s improvements, the final version increased the response time allowed to custodians, turned mandatory attorneys fees into discretionary fees and, among other things, allowed agencies to outsource their responsibilities to vendors and require requesters to cover the expense.

The state Senate now has an opportunity to make things right. With strong leadership, the Senate can pass an ambitious and uncompromising piece of legislation that can withstand the hard negotiations that are sure to follow. As NEFAC and its Massachusetts Freedom of Information Alliance partners recently explained in a letter to state senators, the following needs to occur before the Senate votes on its bill:

  • Support Amendments 22 and 60. The Senate’s legislation restores mandatory attorney’s fees. This puts Massachusetts in line with nearly every other state and prevents citizens from having to foot the bill every time government officials refuse to follow the law. The bill, however, allows several exceptions. One of those exceptions allows the court to make fees optional when requesters go to court and custodians reverse course and provide the documents at the last minute. These amendments would close this loophole.
  • Support Amendments 24 and 35. The Senate bill provides a $25 an hour rate cap and prohibits charging for optional redaction time. These are much needed improvements over the House bill. The Senate’s bill though also allows custodians to petition the Supervisor of Public Records to permit higher rates and redaction charges. These amendments would require a stronger standard of review for when the supervisor is petitioned.
  • Support Amendments 18, 21, 51, and 62. While the legislation requires records to be provided electronically whenever available in electronic form, Amendments 21 and 62 would improve access to information in databases. With these amendments, custodians would not be able to withhold data simply because it’s kept in a database and needs to be exported. Amendments 18 and 51 would require all municipalities to maintain websites and post basic guidance for requestors online. Amendment 51 would also require municipalities to post minutes and other common documents to their respective websites.
  • Oppose Amendments 10, 11, 12 and 57. While still giving custodians more time to comply with requests than under the current law, the Senate’s legislation significantly reduces the excessive response time allowed in the House bill. These amendments would provide exemptions to the Senate’s timetables for many of the communities in Massachusetts and should be opposed.
  • Oppose Amendments 13, 14, 15, 31, 36, 39 and 42. For many different reasons, these miscellaneous amendments create new barriers between the public and information or shift focus away from government transparency and accountability.

“[T]he people’s right to know what their government is doing is one of the fundamental rights of a citizen and is the primary means they have to ensure the accountability to which they are entitled…,” wrote former Gov. Francis W. Sargent in a 1970 executive order that helped pave the way for a public records law three years later.

Our Commonwealth’s primary means to ensure accountability is becoming more and more elusive. With the Senate’s help, that can change. The momentum we have today has been building for 43 years. We need to make the most of the opportunity. There’s no guarantee we’ll get another.

Justin is executive director of the New England First Amendment Coalition and can be emailed at justin@nefirstamendment.org.

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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.

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