BOSTON – Statewide advocacy groups say legislators considering a final version of a new Massachusetts Public Records Law must focus on limiting costs to both the public and the government, setting reasonable time requirements and enforcing the law.
The current law “does not send a clear signal to agencies and municipalities that there is a consequence to violating the law,” said Gavi Wolfe, legislative counsel for the Massachusetts chapter of the American Civil Liberties Union. “And it doesn’t send a clear signal to requestors that they will be supported in their efforts to enforce the law.”
Separate House and Senate bills that would change the public records law are being reconciled in conference committee.
Wolfe, who testified Wednesday before the committee, spoke about the issue of enforcement. He said that requiring government agencies that either delay or refuse altogether to provide records to pay the legal fees for those suing successfully to obtain them would “incentivize compliance.”
“The most important thing is to enable people to enforce the law and to ensure that there are real consequences for when there are violations,” he said at the hearing. “A really important principle is that enforcement shouldn’t be optional.”
The House and Senate bills offer different remedies when records requests are wrongfully denied or handled. The Senate calls for reimbursing all legal fees “reasonably” incurred if it is determined that the agency improperly handled the request. The House would require that complaints be referred to a superior court to determine whether the request was wrongfully denied.
Massachusetts, Wyoming and South Dakota are the only states that do not reimburse attorney’s fees to those who were wrongfully denied public records, Wolfe said.
He was joined Wednesday in testifying before the conference committee by Pam Wilmot, executive director of Common Cause Massachusetts, and Robert Ambrogi, executive director of the Massachusetts Newspaper Publisher’s Association.
The trio likened the issues to a three-legged stool. “Making progress in each area (cost, timeliness and enforcement) is critically important, or the reform will not stand,” Wilmot said.
She commended aspects in both bills, but said she believes the Senate bill “is stronger in most areas” and is more comprehensible.
While the Senate bill would allow communities and state agencies to charge a maximum of $25 per hour to fill record requests, the House bill’s limit would apply only to state agencies.
Wilmot said another issue with the cost of enforcement is redaction, or the withholding of certain information from what is otherwise a public document.
“Redaction is a big issue. That’s how most charges for public records get racked up. It isn’t copying charges, it isn’t search charges,” she said.
Instead, Wilmot said the charges most often result from lawyers’ fees incurred to ensure that sensitive information is redacted.
The Senate bill stipulates that if information is being withheld under a law such as the Health Insurance Portability and Accountability Act, the amount can be charged; however, the person making the request cannot be charged for information that is withheld which is disputed because it is not clearly covered by law.
The state’s current public records law, established in 1973, requires that agencies respond to public requests for information within 10 days and charge only the cost of reproducing the requested records.
The new bills propose an extension to the amount of time that an agency has to complete a request, though each bill establishes different lengths of time. The House bill sets deadlines of up to 75 days, while the Senate bill calls for up to 60 days.
Ambrogi said both bills still gives custodians of records more time than they would have in other states. Vermont requires records be provided, in three days – with a possible extension of no more than 10 days, he said.
“Most public records requests are not complicated or difficult. There’s just no reason (these records) can’t be quickly provided,” he said. “If a record is provided in a timely way, then all the other issues go away. Then we’re not talking about appeals, we’re not talking about whether there should be attorneys’ fees in court or anything else.”
Ambrogi suggested the conference committee’s bill allow 15 days to produce the records, with a maximum extension of 15 days. Should a public official feel the need for more time, the request for an extension should then be made to the office of the secretary of state.
“The government works for the citizens and these records are the citizens’ records,” he said. “Providing public records is not an ancillary job, it’s a part of the government.”
The conference committee plans to meet again in the coming weeks, though a date has not yet been set.
This article was originally published on April 2, 2016.