Public records laws in Massachusetts have not been updated for over four decades. Just before the winter recess the House passed legislation designed to make major improvements to the Commonwealth’s public records laws. The Senate is expected to pass its own version in early February. I want to take this opportunity to share with you some of my thoughts about why reforming our public records laws is critically important and the approach taken in the House bill.
Public records laws in Massachusetts were inadequate from the start. Currently, when a member of the public makes a public records request the governmental agency that is the record holder is obligated to fill that request within 15 days. The record holder, however, may assess fees associated with the production of that record and is unlikely to be subjected to enforcement of the law as there are neither strong enforcement mechanisms nor the ability to recoup legal fees by way of a court order. This dearth of enforcement mechanisms and the costs associated with the production of records at times have made records public in principle but private in practice. Improvements are long overdue.
Despite this clear need for action, there are legitimate and practical challenges faced by a governmental entity seeking to produce records. For example, records holders have long complained of overly restrictive deadlines given the scope of some of the requests they are seeking to fill. In addition, the Legislature heard concerns from municipalities about abusive requesters who make an unreasonable number of requests, far beyond any reasonable need to access information.
Debate over the best approach to reform was ongoing throughout last year’s legislative session. Negotiations between advocates focused on opening up government and records holders concerned about the practical realities of filling requests were arduous, and so the legislation moved slowly. Finally, after sensible compromises were struck and much of the minutiae had been refined, legislation passed on the floor of the House.
The House bill does a good job of establishing a new framework for how public records requests will be filled in the Commonwealth. The first significant change addresses the longstanding problem of how to handle complex public records requests that cannot be filled in the standard allotment of time. To better facilitate timely compliance, records holders will designate records access officers who will comply with requests within 10 business days. Should a record access officer be unable to meet the request on time, the officer must contact the requester with thorough specifications as to why more time is needed and make clear any associated fees. In such cases, municipalities will have 75 days to comply while state agencies will have 60 days. These clearly delineated rules and processes will govern instances in which holders request further extensions, raise objections to the request or requester, or in which requesters appeal to supervisors. Providing a generous time frame for filling requests and requiring written clarity as to why extra time is needed to produce records are changes that will work in conjunction with the enforcement mechanism improvements laid out below.
The House bill also addresses the fact that cost is often a prohibitive factor for those seeking public records by including a number of mitigating provisions to prevent record holders from assessing exorbitant fees associated with filling records requests. Under the House proposal, records holders would no longer be able to charge requesters for the initial time spent processing requests, after which the hourly rate for time spent would be capped at $25/hour for state agencies and at the hourly rate of the lowest-paid employee capable of producing the records for municipalities. In addition, per page fees would also be capped at $.05.
Finally, as noted previously, the House bill makes a number of improvements to the enforcement of public records laws. The bill establishes clear timeframes and processes for filing complaints with the Supervisor of Records. More significantly, the bill gives courts the power to order record holders to produce records, make legal determinations over what records can and cannot be withheld (the burden of proof will be on the record holder), and waive or reduce fees charged by the record holder. Most importantly, courts will be able to award attorney’s fees, litigation costs, and civil damages (not to exceed $5000). The bill also allows the Attorney General to proactively intervene to seek these penalties. There will now be real risk of significant consequences for avoiding compliance with our public records laws.
Having strong yet practical public records laws is a critical part of a well-functioning democracy. The House legislation strengthens access to public records by allowing sufficient time for their production, putting reasonable constraints on costs and effectively punishing failure to comply with the law. With the Senate poised to take up the issue, I am cautiously optimistic that legislation will be on the Governor’s desk in the near future.