State Senate unanimously approves bill reforming public records law

BOSTON — The state Senate Thursday unanimously approved a bill updating Massachusetts’ 40-year-old public records law, setting up negotiations with the House, which passed a different version in November.

The Senate bill would move the public records law “into the 21st century,” Sen. Karen E. Spilka, D-Ashland, chairwoman of the Senate Ways and Means Committee, said during Thursday’s session. The bill passed on a 35-0 vote.

Spilka said the Senate bill would make the public records requirements “simpler, clearer and fairer.” She added, “No more will governments be able to sit on straightforward requests without responding.”

The current law, established in 1973, requires that agencies respond to requests within 10 days, and charge only the cost of reproducing the requested records.

But critics have complained that the 1973 law is too vague, does not address current issues and is rarely enforced.

“Because these are public records, the public has a right to them,” Spilka said.

The House and Senate bills address many of the same issues, but, in some cases, with different approaches. The differences must now be worked out in a conference committee with members of both branches.

Both would require each state and local agency to designate someone responsible for handling public requests, but would not require that the agency hire someone new for the job.

The bills would also encourage agencies to share public records electronically, and limit the amount that an agency can charge for a request.

Both bills also address potential legal action when records requests are wrongfully denied or handled. The Senate bill calls for reimbursing all legal fees “reasonably” incurred if it is determined that the agency improperly handled the request.

The House bill would require that complaints be referred to a superior court to determine whether the request was wrongfully denied. If the judge decides in their favor, complainants would be reimbursed for all legal costs incurred and would have all records request fees waived.

Rep. Peter V. Kocot, D-Northampton, chief sponsor of the House bill, said the existing law “provides little or no process, provides no impetus for keepers of public records to comply with requests … and does not recognize the transformative nature of the advances in media and technology since 1973.”

The House bill, approved unanimously in November, would extend the amount of time that an agency has to complete a request from the current 10 days to 60 days, and would allow 75 days for municipalities, as long as they provide a reason and a fee estimate.

The Senate bill would mandate that requests be met within 15 days. Agencies would then be able to request their deadline be extended to 30 days, or 60 days at most, if they provide notice of at least 10 days from their original request.

The Senate bill would also require agencies to waive the processing fee if their custodian of records does not respond to the request within 10 days. The fee would also be eliminated should the request not be met within the preliminary 15-day limit.

Some municipal officials say the Senate bill would put too much burden on their communities.

Geoffrey Beckwith, executive director of the Massachusetts Municipal Association, said the Senate bill adopts a “one-size-fits-all” standard, imposing burdens on small communities, such as those in western Massachusetts, that often do not have the same resources as large state agencies.

“The legislation needs to have flexibility, and time lines and a structure that’s broad enough so that the work can be incorporated in …(with) the other public responsibilities and obligations that cities and towns have,” Beckwith said.

Both bills would exclude the governor’s office, Legislature and judiciary from the public records law.

Kocot said their inclusion would pose a risk of sensitive information being released unintentionally.

Instead, Kocot said, the House bill would establish a special commission, with members appointed by the governor and the Legislature to “look more closely at this.”

This article was published by the Daily Hampshire Gazette on February 5, 2016.

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