With Massachusetts Public Records, Reform is in Everyone’s Interest

By Amanda Palmeira

With legislation intended to reform the Massachusetts public records law expected to be addressed soon by the state Senate, a group not often associated with the effort recently emphasized the importance of transparency beyond the interests of attorneys and journalists.

The Massachusetts Genealogical Council — representing genealogists, historical societies, librarians and researchers concerned with records preservation and free and unfettered access to civil records — hosted a panel on Nov. 9 to discuss the value of open public records.

“We want to make sure that folks who are stakeholders with open public records know about the other groups that can help them work through the issues we have to deal with,” said Sharon Sergeant, the council’s vice president and moderator of the panel.

The Massachusetts Freedom of Information Alliance, for example, is a group of more than 40 diverse organizations advocating on behalf of comprehensive public records reform in Massachusetts. The New England First Amendment Coalition is a founding member of the alliance, which also includes the Massachusetts Newspaper Publishers Association, or the MNPA.

Robert Ambrogi, an attorney and executive director of the MNPA, spoke at the event about the reform bill now making its way through the Senate.

“The public records law now on the books in Massachusetts has not substantially been revised since the early 1970s,” Ambrogi said.

Ambrogi described how the Massachusetts public records statute is poorly enforced and that there are only two ways to enforce the law. The first way is to file a complaint with the Secretary of the Commonwealth, who can then investigate and issue an order to comply — but do so without the authority to enforce that order. The Attorney General’s Office is instead responsible for enforcing these orders and needs to reevaluate each matter before beginning litigation.

“That’s a cumbersome, time-consuming process,” Ambrogi said, citing an article in The Boston Globe that found this process has been ineffective.

The second way to enforce the public records law is for the requester to commence a lawsuit on his or her own. But because there is no attorney fees provision in the statute, “if you bring an action, you’re doing it out of your own pocket, even if you’re successful in proving that the government agency violated the law,” Ambrogi said.

Massachusetts is one of only three states in the country that does not provide attorney fees to prevailing plaintiffs. The legislation now being considered by the Senate includes an attorney fees provision, as well as other improvements to the law such as more reasonable fee structures and the requirements of Records Access Officers.

Still, many concessions were made to groups opposing the legislation as originally written. NEFAC Executive Director Justin Silverman recently said that the latest version is “a mixed bag. There are several improvements that could help the public obtain information. But there also changes that could make it difficult to get that information quickly and inexpensively.”

Jim Lampke, an attorney and the executive director of the Massachusetts Municipal Lawyers Association, provided the perspective of local government offices who opposed much of the language in the original bill.

“People on my side of the table — local government officials, local government employees, attorneys, etc. — do agree whole-heartedly that the law is outdated and it needs to be updated, needs to be made more efficient, needs to be utilizing the technologies we believe are out there,” Lampke said. “But it’s not a simple enough thing of just changing the words of a statute and all of a sudden it’s going to be accomplished.”

One example Lampke provided is the concern over what some consider to be burdensome public records requests.

“People sometimes will come in and they want to see every document that relates to A, B, C, and D, and they don’t have a real purpose for doing it but they’re just mad at the town for doing something,” Lampke said. “I recognize that’s part of the downside and you have to take the good with the bad, but you oftentimes have to deal with these types of requests that are, frankly, overly burdensome.”

Ambrogi responded by saying, “We keep hearing from the municipal side this claim that modernizing this public records bill will increase the number of abusive records requests. . . . These abusive records requests are outliers.”

“There’s no evidence at all to support this notion that by creating a stronger public records law, as we’re talking about doing, there’s going to be an upshot in abusive requests — that’s just not the case, and there’s no reason to believe that,” Ambrogi added.

Melinde Lutz Byre, director of Boston University’s Genealogical Research Program, said the answer to many public records concerns is in regulating how the public can use certain information — not withholding that information altogether.

“The answer to problems with private and sensitive information with never be to close it because it isn’t private and it isn’t closed,” Byrne said. “What you need to do is control how others use it and, frankly, our legislatures, who are otherwise good business people, have exposed us to people who will commit fraud with that information, and that’s what we need to guard against.”

An audience member raised the issue of how providing government information costs the public money and can be a financial drain on communities.

“Yes, I agree, public records cost money,” Byrne responded. “But if government finds it necessary to collect this information, then we need to understand that it’s also part of their duty to distribute it.”

Amanda is a second-year law student at New England Law | Boston and was a summer intern for NEFAC. She can be emailed at amanda.palmeira@nesl.edu.