Senate puts teeth into public records reform

THE STATE SENATE unveiled its version of Public Records reform, potentially the first major overhaul since the law was enacted in 1973, placing a hard time limit on responses, requiring courts to award attorneys’ fees if a requester is wrongly denied, mandating electronic records be provided, and restricting fees for compliance and copies.

The bill, which will be taken up in the full Senate next week, veers far from the measure approved at the end of the session last fall by the House, which gives months to state agencies and municipalities to respond to requests, even allowing unlimited extensions, and makes attorney fees optional at the discretion of the court.

“This modernizes our Public Records Law for the first time in 40 years,” Senate President Stan Rosenberg said at a press conference. “There is no point in having a Public Records Law if people can’t get timely access to the public records they need either in a low-cost or no-cost fashion.”

Advocates for transparency hailed the bill as a significant step in reform and said they hoped, after Senate passage, the final product will look more like the Senate version than the House.

“This is a very strong bill,” said Pam Wilmot, executive director of Common Cause of Massachusetts. “We are very pleased with what the Senate has done and feel it will address many of our concerns around excessive charges, around responsiveness, around denial. It will put teeth in the law, it will restrict costs, and it will bring transparency… We will put pressure on the conference committee to take as much of the Senate version as possible.”

Under the Senate bill, an agency or municipality has 10 calendar days to respond to a request and no more than 15 calendar days to comply. If a request requires more time, the agency can get an additional 15 days but, after that, it would need permission from the Secretary of State’s office for a one-time, 30-day extension.

Under the House version, the agency or municipality would also have 10 days to respond. But unlike the Senate bill, the House bill would give a state agency up to 60 days to comply and a municipality 75 days. If more time is needed, the state or municipality could ask the supervisor of public records in the secretary of state’s office, who could grant an unlimited extension.

The Senate bill, in addition to the finite timeframe, would not allow any entity that goes beyond the 10-day response period or 15-days for compliance to charge any fee for the record if it is provided after those deadlines.

The Senate bill mandates a state agency cannot charge for the first four hours of redacting and segregating public records while a municipality cannot charge for the first two hours. After that, there is a $25 cap for hourly fees for an agency or community to comply. The House bill also includes the hourly waivers but that measure allows cities and towns to hire an outside vendor and charge the going rate. The Senate bill allows the outside vendor but keeps the $25 cap, unless a higher amount is approved by the secretary of state.

Unlike the House bill, which has a 30-day statute of limitations to file an appeal in court, the Senate measure has no time limit for court actions and allows requestors to bypass the supervisor of records and go directly to Superior Court for relief.

Both the House and Senate require state agencies and urge cities and towns to post commonly requested public records online and create searchable sites for some records. The measures also require that a record in electronic form must be provided that way unless requested otherwise. The two bills also cap the charge for hard copies at 5 cents a page, down from the current fee of up to 50 cents a page.

Geoff Beckwith, executive director of the Massachusetts Municipal Association, said his organization’s members are concerned that the Senate version, if adopted, would create an “unfunded mandate” by limiting the amount of money cities and towns can recover in responding to requests. He also said the stricter timelines in the Senate version could wreak havoc with small community staffs that are juggling a number of balls in the air on a daily basis.

“Our concern is not about passage of legislation,” said Beckwith. “The goal is to have the Public Records Law updated but to do it in a way that doesn’t divert needed resources…”

Senators said they took local concerns into consideration in crafting the bill but erred on the side of transparency and modern technology in the measure that was approved.

“We really tried to strike a balance,” said Sen. Karen Spilka of Ashland, chairwoman of the Senate Ways and Means Committee which wrote the chamber’s version. “This is a very complex law and its application is even more complex.”

Senators downplayed the decision not to include the governor’s office in any reforms or to make the Legislature subject to public records requests. Under the current law, the Legislature and courts are specifically exempted from the law while court decisions have ruled that the governor’s office, because it is not specifically mentioned in the existing statute, is exempt as well. The House version includes creation of a committee to study whether to include those branches in the law. The Senate bill does not have that provision but senators say it could still be addressed, though it was not a priority of this measure.

“The scope of this bill from day one is to get the current Public Records Law to work,” said Sen. Jason Lewis of Winchester, the author of the Senate bill. “This was not about changing the scope of the current Public Records Law.”

The current law has been seen as one of the weakest in the country, with sketchy compliance and no penalty to ensure enforcement. Agencies and municipalities routinely ignore requests and even decisions by the secretary of state ordering them to comply with requests. Under the Senate bill, an agency that is found to have acted in bad faith could be fined between $1,000 and $5,000 in addition to legal fees that could be assessed by courts.

“They really got it right,” Carol Rose, executive director of the ACLU of Massachusetts, said in a statement.  “These are the practical, tested reforms that are needed to make the law more than just empty words on a page.  We’ve described the current law as a flashlight without working batteries.”

Reporters and editors have been among the loudest critics of the current law, claiming agencies and municipalities drag their feet and charge exorbitant fees to beat back requests. “With this bill, the Senate has shown that it takes seriously the importance of reforming our Public Records Law,” Bob Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, said in a statement.  “This bill would significantly enhance the ability of citizens and journalists to obtain records on a timely basis at a reasonable cost and to enforce their rights when they are wrongfully denied access to public records.”

The original version of this story incorrectly stated both bills included a clause to create a committee to study removing the exemption for governor, the Legislature, and the judiciary. Only the House bill has that section.