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Sunday, March 12, 2017

State public records law poses challenge after overhaul

State public records law poses challenge after overhaul

With a more effective public records law now in effect, advocates say days when people were charged exorbitant fees for accessing public records or simply ignored because the law had no teeth should be over. But some people may still have to go to court to fight to get the information the law says should be public.

The long fought-for overhaul of the Public Records Law, which became effective Jan. 1, provides the first substantive changes since the law was passed in 1973.

The new law comes after decades of horror stories about tactics used by some cities and towns and state agencies to skirt or ignore the old law. The old law was so ineffective that the Center for Public Integrity, a D.C.-based nonprofit watchdog investigative journalism organization, in 2015 gave the state a grade of "F" in the category of access to information.

Pam Wilmot, executive director of Common Cause Massachusetts, said Massachusetts now has a "substantially improved" law. She said the law went from being "one of the worst in the country to in the top half."

Common Cause, which has fought for improvements to the federal Freedom of Information Act at the state and federal levels for decades, and the American Civil Liberties Union helped write the legislation, which passed last June after a six-year-long campaign.
"I think the new law will result in more timely and cost-effective access to public records. But in some instances, citizens or journalists will need to go to court to enforce their new rights," she said. "We didn't get everything we wanted. But it's a huge step forward for our state and for accessing information about government in Massachusetts."

The new law, among other things, directs municipalities and state agencies to designate one or more employees as the Records Access Officer, or point person, so people requesting public information can't get the runaround. The law also specifies the amount of time in which a response must be made to an information request. It also limits the amount that can be charged for that information.

It also requires records to be provided in electronic form where available.

Gavi Wolfe, legislative director of the ACLU, said the most important thing the overhauled law does is create a real enforcement mechanism. Massachusetts was one of only three states that did not have a provision in its public records law that allowed successful legal challengers of denied records to recover attorney's fees.

A requester can petition the state's Supervisor of Public Records or file litigation in Superior Court to challenge the estimated fee for public records, the time it takes an agency or municipality to comply or to challenge a denial of records.

"Now, what happens if you win, you have the ability to recover attorney fees and you could have the cost of the records waived, if they should have been provided to you in the first place," Mr. Wolfe said.

Rebecca S. Murray, the supervisor of records in the Secretary of State's Public Records Division, said it's too early to tell how effective the updated law is compared to the original law. However, the different updates should make the law work better, she said.

She pointed out that if an agency or municipality fails to provide public records within the specified time period, the Records Access Officer is prohibited from charging fees.

"These provisions of the updated law make it more difficult for agencies and municipalities to ignore requests for records," she said. "Certainly this office is always in favor of improved access to public records."

The law has also had an impact on the Public Records Division. Ms. Murray said between Jan. 1 and March 1, she issued 238 determinations on petitions regarding alleged noncompliance of the law. In that same period last year, 121 determinations were issued. Determinations of appeals have been available on the Secretary of State's website since 2014.

"While the increase could be caused by a number of factors, it is likely in part due to the new requirement for the supervisor to issue determinations on appeals within 10 business days," she said.
So far, Ms. Murray has not referred any petitions to the Attorney General's office for enforcement because a municipality of state agency failed to comply with her order.


The public records law does not apply to the Legislature, the governor's office and the courts. A provision in the law, however, requires a 14-member special legislative commission to examine the "constitutionality and practicality of subjecting" the three entities to the law.

Gordon Witkin, executive director of the Center for Public Integrity, called the exemptions "a massive loophole in the law." He said many states do not exempt the governor or the Legislature from public records requests.

"These are, particularly in regards to the governor and the Legislature, the people who are supposed to be answerable to the public and whose records citizens would want to access. That sounds like more than a little bit of a cop-out to me," he said. "To say you passed a public records law and exempted the governor and legislators strikes me as fairly cynical and self-serving."

Some cities and towns are also unhappy with the new law in that it requires additional work and resources to comply.

Geoff Beckwith, executive director of the Massachusetts Municipal Association, said it is too early to say the ultimate impact that the law will have on cities and towns and local taxpayers. But it is already apparent that it imposes new administrative requirements and burdens on local government.
During the drafting and debating of the legislation, MMA called for balanced changes to prevent the imposition of unfunded mandates on local governments that have eliminated thousands of positions because of budgetary constraints. Mr. Beckwith said many small communities have part-time administrators and town halls that are closed one or more days during the work week.

"Our fear is the burden itself because it's a very bureaucratic process that will take personnel from performing other important municipal functions," he said. "One person or a handful of people are responsible for doing so, so much."

Most of the cities and towns in Worcester County met the Jan. 1 requirement of posting information about the overhauled law and contact information for the local Records Access Officers on their websites. For some, though, the information is not as conspicuous as the law requires.

Gardner Mayor Mark P. Hawke, in a recent interview, called the new law an unfunded mandate and said the changes do not improve the law. He said the city "is still trying to put everything together." He said the city will update its website after City Solicitor John M. Flick attends a seminar on March 15 to learn more about what needs to done to fully comply.

"Yeah, we're a little bit slow in putting everything up there on the website. Now we have to put all this together and update our website, so that's an unfunded mandate concern to be had there," Mr. Hawke said. "... The law is not better now. That's for sure. It's a nuisance because we don't have people sitting around looking for something to do. I think it was a solution in search of a problem."
He said the city recently received a request from a Boston law firm for "oodles" of information. The request will have to be handled by the IT director, who earns $44 an hour. However, the law limits what the city can charge to $25 an hour unless the state's Supervisor of Public Records approves a different amount.

"We're subsidizing these public records requests because the law limits how much we can charge," Mr. Hawke said. "Something like this we're going to have to charge something. It's an inordinate amount of time to put that stuff together."

John Hill, the records request officer for the city of Worcester, said he and four other city employees are working together regularly on how to make internal changes as needed to process requests faster. He said the city is also talking to some vendors about software that would help track the records requests. There are several other RAOs for different departments and the Police Department.

"Public records requests aren't new. But there is definitely a greater urgency to do them so the public records requests do move up the pile of your to-do list because you have to get them done in a certain amount of time," Mr. Hill said. "It can be a burden to city employees to get that done over and above what their primary role is, which is what taxpayers are paying us for. It's a balancing act."

The town of Auburn is out front of many municipalities. Town Manager Julie A. Jacobson, who is a member of the MMA's Policy Committee on Municipal and Regional Administration, has followed the law since it was first proposed.

Instead of designating one Records Access Officer, the town has 11 primary RAOs and 11 backup RAOs and a third RAO for some departments. Ms. Jacobson said that is to ensure someone is available to respond to requests in a timely manner.

The town developed a single webpage for all records requests where a person can see which RAO they should contact. And, unlike most area communities, Auburn developed a software program that allows a person to complete a records request form that is specific for each department online and submit it electronically. In other communities, a person would have to download the form and mail it or scan and email it to the RAO.

The program is tied into a system that tracks public records requests, including the town's response dates, and how much employee time it takes. Legislators had considered requiring municipalities to report some of this information annually to the Supervisor of Public Records. The law only requires state agencies to do this.

Ms. Jacobson said to be proactive and more efficient, the town is putting additional information on its website that people might be interested in and starting a library to keep information provided through public records requests in PDF documents.

Ms. Jacobson said the town has done a good job of preparing for implementation of the new law, but it is an unfunded mandate. The preparation has cost several employees several hours of work. Plus, the law limits what communities can recoup from providing the requested information.

"Ultimately the taxpayers of a community are funding the implementation of the law," she said. "That being said, I understand and recognize the value of being transparent and being able to efficiently respond to public records requests. But they have to acknowledge that there may be a cost to municipalities."

Mr. Wolfe, with the ACLU, said State Auditor Suzanne M. Bump determined that the law is not an unfunded mandate. He said the requirements of the law have been in place long before the state's unfunded mandate law.

"The big difference now is that municipalities and state agencies can be held accountable if they don't follow the law," he said.

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