THE HOUSE WAYS AND MEANS Committee is set to unveil a bill that would allow those who are thwarted in seeking public records to collect attorney fees, a stick designed to put some force behind compliance, but the measure does nothing to strengthen what is largely viewed as one of the nation’s weakest public records laws and, in fact, could make it harder to get records in some cases.
The bill being circulated to committee members for approval, which is slated to go for debate before the full House Wednesday, also drops fines from the original sponsors’ bills against individuals who do not comply with the law and, instead, leaves it to a judge to levy a fine of between $1,000 and $5,000 against the agency or municipality. The measure would also allow agencies and communities to request time extensions if they deem the request to be heavily involved, delays that could go up to 75 days after an initial request.
The bill had met resistance from cities and towns because of potential costs as well as State Police, who have been reluctant to release records involving officers who have gotten into trouble such as drunken driving or domestic assaults. It appears that some of their concerns were addressed in the measure.
The bill gives agencies and municipalities not only extended time to comply, but the option to contract out a search and compliance to an outside vendor if they deem the request goes beyond their capabilities.
Under the measure, if a public entity decides to send the request to an outside vendor, the person who made the request must sign an agreement to “reimburse the agency or municipality for the reasonable and actual costs of engaging a vendor” up to a set amount to be agreed upon. If an amount cannot be agreed to and the requestor does not sign a contract, the agency does not have to comply with the request.
Sen. Jason Lewis, a Democrat from Winchester, authored the Senate version of the bill and said beefing up compliance through threats of penalty as well as making records available in electronic form is a major step in opening up access. Lewis, who had yet to see the newly written bill before speaking with CommonWealth, said mandating a dedicated employee to handle requests either at the state or local level is also a move forward in reducing the long waits and freeing records more quickly.
“My feeling at least is the bill that I filed is fairly very modest reforms, but I think important ones that would make the law better,” Lewis said. “Access to public records is essential to transparency and government. If we don’t have a transparent government, to me it puts our democracy at risk.”
Some of the biggest issues left unchanged, however, include opening up the governor’s office, Legislature, and judiciary to public records requests. All three branches say they are exempt from the law because of the way it was originally crafted. Lewis said had there been any attempt to alter those provisions with this bill, it would have been another likely defeat for change.
“Chapter 66 [the public records law] hasn’t been updated since 1973 so we know it’s really drastically out of date,” Lewis said. “I think we do need to come back and have a conversation about other kinds of records that ought to be available. This has been before the Legislature multiple sessions and we have struggled to move it forward. We wanted to have a bill that we thought had a good chance of being taken up. I think it’s just a recognition that this issue isn’t simple.”
Gov. Charlie Baker initially said his office as well as the Legislature and courts are “excluded” under the state constitution but, when told it was actually a court decision, he said “it depends on the details” of whether he’d agree to having his office be subject to the public records law.
Polling among House Ways and Means members will go through Wednesday morning and if the bill is approved, as expected, it goes to the full House for debate. But the measure must still be approved by the Senate and Wednesday is the last day of formal sessions. And none have yet seen the bill. If the Senate decides to pass its own version, it could go to a conference committee and, if a compromise measure is approved, be acted on in informal session. The Senate could also wait until it returns in January to take it up.
“The Senate is going to need to take a close look at the version of the bill,” said Lewis.