Full Disclosure

Full Disclosure

It's a simple equation: Transparency is only as good as the access available to public documents. With this in mind, CommonWealth has set up an information page to help residents wade through the state’s public records request system. Here you’ll find detailed information on making public records requests, links to records available online at state websites, as well as links to CommonWealth’s own growing public records database.

Something’s new this year at UMass Boston

Something’s new this year at UMass Boston

40% of freshman class will be living in dorms

NEXT WEEK, as students return to University of Massachusetts Boston, a number of them will do something no one has done in the school’s history:

Live on campus.

For the first 53 years of its history, UMass Boston students commuted to campus by bus, T, or car.

This year that will change. Approximately 1,000 students — roughly 40 percent of the entering freshman class — will live in residence halls on campus. They will enjoy a stunning cafeteria, the company of a professor in residence, and the benefits of social and academic programming.

They will also be part of UMass Boston’s largest and most diverse freshman class and that is no coincidence. Almost half of the students who will live on campus received a merit-based scholarship. The university committed $1.4 million in grant aid to ensure that students from low-income households have the same opportunity to live on campus as more affluent peers. The new residence halls will therefore bring students together across the lines of race, family income, and educational background to create the kind of pluralistic microcosm that universities around the country attempt to model.

Boston is booming and so are its rents. Providing an affordable housing option on campus helps students manage the expense of a university education while enabling them to take advantage of an opportunity for engagement that students at most colleges take for granted.  Extensive research has shown that living on campus increases persistence rates, graduation rates, and academic performance. As such, an investment in housing is also an investment in student success.

And students aren’t the only ones who benefit from these amenities – so, too, will our capital city and our Commonwealth.  Two thirds of UMass graduates remain in this state to fuel its prosperity.  They play an outsized role in our burgeoning innovation sectors, from finance and technology to healthcare and education. Student housing not only makes UMass Boston more accessible to diverse and talented students outside the commuting range of Columbia Point, it helps ensure we can keep them in Boston when they graduate. Furthermore, providing housing for 1,000 UMass Boston students relieves pressure on the rental markets in Dorchester and South Boston, benefitting families in those neighborhoods.

In recent months, there’s been no shortage of debate about the ability of the University of Massachusetts to deliver on the mission of providing social and economic mobility to students, given the increasingly challenging environment facing public universities today. To be sure, on-campus housing is just one step. From new and improved infrastructure to more academic and experiential learning opportunities for students, there is much more to come.

But this is an important and transformational moment, for our university system, for the future of urban education in Boston and—most important of all—for the hardworking students who are the future of our workforce and community.  The result of years of hard work and planning, the advent of student housing at UMass Boston is a triumph for the university community, the Baker-Polito administration, the Legislature, and Boston Mayor Marty Walsh, all of whom deserve our thanks for propelling Boston’s public research university to the next level.

Marty Meehan is president of the University of Massachusetts and Katherine Newman is interim chancellor of UMass Boston.

Public records harassment tough sell

Public records harassment tough sell

Enforcement rare on statute aimed to give communities relief

WELLESLEY RESIDENT RONALD ALEXANDER seems to be exactly the sort of guy lawmakers had in mind when they included a harassment provision in the new Public Records Law.

Alexander has filed more than 200 public records requests with Wellesley since 2013. He has filed 162 requests with the school department and school committee, 40 with the Board of Selectmen, and seven with the police department. More than half of the requests have been filed since last August.

“Mr. Alexander utilizes the Public Records Law to target and harass specific employees,” school official Judith Belliveau and town executive Meghan Jop wrote in a 10-page petition to Secretary of State William Galvin’s public records office in April. “Mr. Alexander’s pointed requests have typically been preceded by some action taken by an employee by which Mr. Alexander seemingly feels aggrieved.”

The town’s petition said Alexander “regularly files multiple requests on a single day all pertaining to the same matter” and makes public records requests for records that he himself created.

Alexander had six public records requests for budget information pending when Wellesley officials petitioned Galvin’s office for permission to ignore the requests or, alternatively, be granted more time to respond. The officials said Alexander’s requests fit the parameters of the harassment provision of law, which states that they must be “frivolous or designed to intimidate or harass, and the requests are not intended for broad dissemination of information to the public about actual or alleged government activity.”

Rebecca Murray, Galvin’s supervisor of records, disagreed. In a May ruling, she chose not to void Alexander’s requests, instead giving the town a total of 30 business days to respond.

Murray has yet to approve any harassment requests. Since the Public Records Law took effect in January, 11 cities and towns—including Attleboro, Marlborough, Norwood, Sherborn, and Waltham—have filed petitions asking Galvin’s office for relief from having to produce requested records. Two of the municipal petitions never reached the ruling stage, but the remaining nine were all rejected, although some of the communities were granted extra time to respond. No state agencies have sought relief under the harassment provision in the law.

In April, the city of Attleboro filed a harassment petition in connection with Nora Chorover, a Boston environmental attorney. The city alleged that Chorover’s requests are “part of a series intended to harass private businesses within the city for the purpose of generating revenue by threatening litigation.”

Murray rejected Attleboro’s request.

Wellesley’s petition involving Alexander was the most detailed of those filed so far. It even cited alleged past instances of harassment. In 2013, according to the petition, Alexander signed a settlement agreement with Elizabeth Perry, the Wellesley school department’s performing arts director, in which he apologized and agreed to “immediately cease…any and all efforts to challenge, criticize, disparage, or otherwise inquire about the qualifications, education, and work experience of Ms. Perry, any Wellesley administrator, and any faculty or staff member in the performing arts department.”

Nonetheless, the town found it necessary last November to send a cease-and-desist letter to Alexander to leave Perry alone.

Both Murray and Galvin declined requests for an interview. Alexander could not be reached for comment, and the two Wellesley town officials did not respond to requests for an interview.

Nickeled and dimed

Nickeled and dimed

Dartmouth officials give little in public records requests

THE TOWN OF Dartmouth is certainly a stickler for the rules, unwilling to forego a nickel copying fee for a document disclosing a legal settlement involving hundreds of thousands of dollars.

CommonWealth sent a public records request to Town Administrator David Cressman for a copy of a settlement agreement between Dart-mouth and its former police chief, Timothy Lee.

Lee, who had been collecting $161,000 a year in pay, had filed a $4 million suit against the town in federal court, alleging civil rights, defamation, and other violations. The town and its ex-cop eventually settled for $650,000.

nickel

Cressman’s office responded by mailing an invoice for 5 cents to cover the cost of copying the one-page agreement.

Town officials declined to waive the fee, even though it was going to cost the municipality more than 5 cents in postage and handling to collect the copying fee.

Public records regulations also allow town officials to waive the fee when the disclosure of a record is in the public interest or the request for records is not primarily of a commercial nature.

The nickel was paid (by credit card) and the settlement agreement was sent out by both email and via the US Postal Service, complete with a 46.5-cent postage meter stamp on the envelope.

Galvin upholds Jones decision on privacy grounds

Galvin upholds Jones decision on privacy grounds

Turns down appeals for police video of Patriots player

SECRETARY OF STATE WILLIAM GALVIN’S OFFICE has ruled that the Foxborough Police Department acted properly in denying on privacy grounds a public records request for a surveillance video of New England Patriots defensive end Chandler Jones.

The 6-foot-5-inch, 265-pound lineman showed up shirtless in the parking lot of  the Foxborough police station on the morning of January 10 seeking help.  Media reports suggested Jones may have been under the influence of  “synthetic marijuana.” Police officials released written reports on the incident, but redacted some portions to comply with medical privacy laws and the state’s Public Records Law.

The Boston Herald and New England Cable News filed public records requests for police video of the incident in January, but those were rejected on privacy grounds. The media outlets appealed Foxborough’s decision to Galvin’s office later that same month, and their appeals were denied this month.

“Disclosure of the responsive video recording would result in embarrassment to an individual of normal sensibilities,” wrote Shawn Williams, Galvin’s supervisor of public records. “I find [Jones’s] privacy interest in this matter outweighs the public’s interest in disclosure.”

There are 18 exemptions written into the Public Records Law and about 75 more scattered through Massachusetts general laws. The privacy exemption states that public officials can withhold documents relating to a “specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.”

The privacy exemption is clearly subjective in nature, with court rulings holding that its application requires a balancing of the public’s right to know with the relevant privacy interest at stake. Determinations are made on a case-by-case basis.

The privacy exemption does not shield all records related to a specifically named individual.  Rather, it permits officials to withhold “intimate details of a highly personal nature.”  Examples of the types of personal information that can be withheld are marital status, medical condition, paternity, substance abuse, government assistance, and family disputes, according to court rulings.

 Foxborough town officials argued that release of the video would “unduly encroach upon the privacy rights or interests of an individual who voluntarily came to the [police station] seeking medical assistance.”  They also asserted that the release of the video would add nothing to the previously released written reports of the incident.

Some news outlets were skeptical about Foxborough’s handling of the Jones incident because town police officers handle lucrative detail work at all Patriots games.

Media attorney Robert Ambrogi, who also serves as executive director of the Massachusetts Newspaper Publishers Association, said the decision by Galvin’s office interprets the privacy exemption way too broadly.

“The fact that someone might be embarrassed by a record is not a reason to withhold it,” he said in a statement. “To the contrary, that is sometimes exactly why it should be made public.”

Robert Bertsche, another media attorney, said “the privacy exemption is intended to protect against the disclosure of intimate details of a highly personal nature, where there is an insufficient countervailing public interest. The supervisor seems to equate it with embarrassment. That is a troubling interpretation of our already weak Public Records Law.”

Senate unanimous in support of Public Records Law update

Senate unanimous in support of Public Records Law update

The bill must be meshed with less-stringent House version

STATE HOUSE NEWS SERVICE

ACKNOWLEDGING THAT ADVANCES in current technology has rendered the decades-old law ineffective, the Massachusetts Senate on Thursday passed a public records reform bill updating the statute governing access to public documents for the first time roughly 40 years.

By a unanimous vote, the bill that supporters said would strengthen access to state and municipal records cleared the Legislature’s upper chamber after debate on dozens of amendments.

“It’s been 40 years since the Legislature has taken meaningful action on public records. But today we access information much differently than we did back then,” Sen. Joan Lovely said. “This bill embraces modern technology and encourages electronic postings to connect people with the information they are looking for more efficiently.”

The Senate’s bill would require each state agency or municipality to assign one employee as the supervisor of public records to serve as the point person for records requests and responses.

It also seeks to reduce costs for records requestors by limiting the amount that public offices can charge for producing the records at 5 cents per copied page. Municipalities would be required to provide two man hours of work and state agencies four man hours before they could charge a maximum of $25 an hour for time spent fulfilling a records request.

The bill would also bring Massachusetts in alignment with 47 other states and the federal government in allowing attorney’s fees to be awarded to plaintiffs who successfully challenge a denial of records, except in certain situations.

Sen. Jason Lewis, the original Senate sponsor of the bill, said the allowance of attorney’s fees is critical because it will dissuade the custodians of records from knowingly withholding public information.

“I would argue that is the most important part of the bill,” he said on the Senate floor. “It will finally put some teeth in the enforcement of our public records law and it will bring the commonwealth in line with virtually every other state with how this practice is handled.”

Open government advocates have praised the enforcement mechanisms contained in the Senate bill, which they identified as key differences from the House version of the legislation.

“The whole enforcement process, the House is very complicated, requiring going to the supervisor first,” Common Cause Massachusetts executive director Pam Wilmot said. “This bill, you can go straight to court. It’s easily read and understood, and I think that’s really critical to the public to be able to understand the law.”

There is little disagreement that the state’s public records law is in need of an update, and, where opposition does exist, it focuses largely on the costs that could be imposed upon offices tasked with fulfilling records requests.

“We hope legislation does pass this year so that the questions regarding modernizing the act can be resolved,” Geoffrey Beckwith, executive director of the Massachusetts Municipal Association, said. “For most communities, the biggest concern is regarding making sure the dictates in the law, the parameters of the new law, are feasible to be implemented by smaller offices like a town or small city or a regional school district.”

The Senate’s bill, Beckwith said, establishes unrealistic timelines for compliance and creates an unfunded mandate on municipalities because it limits how much a city or town can recoup in fees rather than allowing it to charge for the full cost of complying with the request.

Generally, the MMA prefers the public records reform bill passed by the House in November, Beckwith said.

Differences between the House and Senate bills will likely be hashed out by lawmakers from both branches in a conference committee.

“We are hopeful the legislation will be moderated and follow the general parameters of enforcement that are in the House bill,” Beckwith said. “We have been encouraging and advocating for legislation that can be implemented at the local level without draining resources away from other tasks, and we are confident that good, strong legislation can be enacted.”

The American Civil Liberties Union of Massachusetts, though, said it prefers the Senate version of the reforms, and hopes many of its provisions prevail in conference.

“It’s a really strong bill,” said Carol Rose, executive director of ACLU Massachusetts. “We’re very pleased. We hope when we do go to conference, it will stay strong. We’re confident that it will stay strong.”

Senators said they took steps in drafting and amending the bill to allay the concerns of municipalities, particularly smaller towns.

“This isn’t about trying to be a problem to the cities and towns,” Senate President Stanley Rosenberg told reporters. “It’s about giving people access to the information to which they’re entitled, and we need to work together — state and local government with the citizenry — to make sure they have timely access at a reasonable cost.”

The bill sets aside certain penalties paid by the government for a fund that will support information technology improvements and other upgrades to help communities comply with the law.

An amendment filed by Sen. Anne Gobi would allow small municipalities to seek extensions based on their normal business hours. Gobi, a Spencer Democrat, said that some town halls in her district are only open a few hours a week and may have a harder time meeting deadlines.

Sen. Michael Barrett proposed an amendment — which was ultimately adopted — that will make Division of Insurance records related to homeowners insurance rate filings public records at the time that they are filed rather than at the time they take effect, and requires that they be posted online within three days of being filed.

During debate on the amendment, Barrett said that making rate filings public before they take effect is “pro-transparency,” is in line with auto insurance practices and will give consumers the ability to weigh in on the requested rates. Barrett had filed four other amendments on the subject of homeowners insurance, but withdrew them prior to consideration.

After a bipartisan push, the Senate also adopted an amendment placing the MBTA retirement board under the umbrella of the public records law.

“Although this seems unrelated to some of the provisions of the bill, I would suggest…that there is nothing more important in this bill than this amendment in terms of regaining public trust in the T and in government generally,” said Sen. Mark Montigny, a New Bedford Democrat who sponsored the amendment along with Minority Leader Bruce Tarr of Gloucester. “It’s horrifying that this information is considered private information.”

Tarr said that opening up the MBTA retirement board to public access would allow for a better understanding of concerns like a growing unfunded pension liability and make it easier to see if there’s cause for the Legislature to intervene.

Tarr also sought to add in a provision requiring the MBTA to post signs in each station and terminal breaking down how much money it receives from various funding sources. The amendment was rejected after Ways and Means Chairwoman Karen Spilka argued that the signs would replicate information posted online, need frequent updates or replacements and likely be ignored by riders.

Some of the more animated debate of the day came when Tarr sought an amendment that would have required gas stations to “include a sign that displays the itemization of all taxes included in the price of motor fuel shown on the sign.”

Rosenberg declared Tarr’s amendment beyond the scope of the bill and ruled that it would be laid aside. The price of gasoline is posted by a private entity and, therefore, is not a public record, he said.

Tarr argued that the gas tax rate was a matter of public record and therefore was well within the scope of the bill. After lengthy debate on the subject, the Senate voted 31-5 along party lines to uphold Rosenberg’s ruling and lay Tarr’s amendment aside.

Baker administration making public records progress

Baker administration making public records progress

Appeals plummet; still, compliance not perfect

A clarification has been added to this story.

THE BAKER ADMINISTRATION is making significant progress in fulfilling the governor’s pledge to make it easier and cheaper for the public to access records from his administration.

Baker’s new procedures require every agency to designate a “records access officer” to receive and track public records requests, to respond to questions, to get documents out the door faster, to lower or eliminate fees, and to provide public records electronically whenever possible. The governor also ordered state agencies to put frequently requested records online.

Baker gave the agencies the month of August to implement the new public records procedures, which became effective on September 1, 2015.

Based on public records appeals challenging the administration’s failure to turn over information, the governor’s new system seems to be having an impact.

For the four-month period prior to Baker announcing the new procedures (April 1, 2015 to July 29, 2015), there were 108 public records appeals filed with Secretary of State William Galvin against various agencies in the Baker administration. Galvin ruled against the agencies in 90 percent of the appeals, and 76 percent of those losses were for the failure of the agencies to simply respond to the requests. (Former governor Deval Patrick’s numbers for the last four months of his tenure were very similar.)

In comparison, for the four-month period after Baker’s new procedures were implemented (September 1, 2015 to December 31, 2015), appeals against state agencies plummeted 51 percent, from 108 to 53. The Baker administration lost 89 percent of the appeals, with three-quarters of the losses for failing to respond.

In both of the time periods examined, the two major state violators of the Public Records Law were the MBTA and the Massachusetts State Police. 

“A decline of this magnitude indicates the administration isn’t just talking transparency, it’s living it,” said Mary Connaughton, director of government transparency at the Pioneer Institute in Boston.

CommonWealth also sought to test the Baker administration’s responsiveness to public records questions under the governor’s new approach. An anonymous email was sent to the records access officers at 24 state agencies in December and January, which included the governor’s office, most of the executive offices, and a number of their sub-agencies.

Using the email address provided by the agencies on their websites, each one was asked the same question: Is it possible to come in to the office and look at records instead of paying for copies?

Three agencies failed to respond to the inquiry, including the MBTA, Public Safety, and the Massachusetts State Police. Three others — Early Education and Care, Elder Affairs, and the Massachusetts Board of Registration in Medicine — failed to respond to the initial inquiry and only answered after a followup call.

For the agencies that did respond, most responses came from their lawyers and indicated that the records could be examined, as the law allows, in person. The fastest responses came from the Division of Banks (18 minutes) and the Executive Office of Education (39 minutes), while the slowest were from the Executive Office of Housing and Economic Development (10 calendar days) and the Department of Higher Education (14 days, but a spokeswoman says the agency’s representative was away on vacation for 6 of the 14 days).

Many of the agencies said they would likely waive fees and offered to provide the records electronically.

Most agencies expect the public to submit records requests via email. Few provide mailing addresses for submitting requests in writing or phone numbers for those with questions. The names of records access officers are rarely provided and in some cases (Transportation and two education departments) agencies don’t make it easy to access information about filing records requests.

The Registry of Motor Vehicles provides no information on its website about how to file a public records request, not even a mention of a records access officer.

Baker himself is not subjecting his office to the public records procedures he is imposing on his agencies. Like his predecessors, Baker believes his office is not covered by the Public Records Law because of the so-called Lambert decision of the Supreme Judicial Court. As a result, he chooses which documents to release.

Connaughton, of the Pioneer Institute, said Baker should reject the Lambert decision. “Not only would transparency advocates cheer,” she said, “the precedent would be an historic step to catapult Massachusetts up from near the rock-bottom national rankings in terms of transparency.”

The Senate on Thursday takes up its version of Public Records reform but, like the House bill, the measure does not seek to bring the governor’s office under the law’s umbrella. The House version seeks to create a committee to study whether the governor, Legislature, and judiciary should be exempt. The Senate bill does not include that section but it could be added as an amendment.

Senate puts teeth into public records reform

Senate puts teeth into public records reform

Bill differs vastly with House measure but still leaves governor and Legislature exempt

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.

House okays panel to review public records exemptions

House okays panel to review public records exemptions

With Senate in recess, reform bill unlikely to pass until next year

THE HOUSE ON Wednesday unanimously approved a watered-down Public Records reform bill but beat back an attempt to lift the exemption covering the Legislature, instead agreeing to form a commission to study whether lawmakers, the governor, and the courts should be subject to the law.

The measure — which allows requesters to seek attorney fees if they are thwarted from getting public records but now allows the state as long as 60 days to comply and cities and towns as long as 75 days — does nothing to change the scope of what is widely viewed as one of the nation’s weakest public records laws. But some advocates say any vote to update the 43-year-old law is a step in the right direction.

“This is the beginning of a process, not the end,” said Pamela Wilmot, executive director of Common Cause of Massachusetts. “You can’t let the perfect be the enemy of the good. You rarely get everything you want; that’s not how it works.”

Rep. Bradford Hill, the assistant minority leader, offered the amendment to form the commission to evaluate the exemptions of the three branches, which passed unanimously. The law currently explicitly exempts the Legislature from the statute and court decisions have ruled the executive office and the judiciary are not covered either. But Rep. Shaunna O’Connell, a Republican from Taunton, said anything short of subjecting lawmakers to public records access is the “height of hypocrisy.”

“There will be no true reform until we hold the Legislature to the same standards we are trying to hold everyone else to,” she said.

State Rep. Peter Kocot, who authored the House version of the initial bill, said the measure brings the Public Records law into synch with the federal Freedom of Information Act and other states’ statutes that allow recovery of attorneys’ fees as well as placing a “hard stop” date on compliance, even if it is two months or more.

“The law never had a hard stop before,” the Northampton Democrat said. “Entities saw the 10-day time-frame as a reply. It wasn’t a comply. This sets a reasonable amount of time with a drop dead date. Prior to this, the response would be six months, nine months, a year, never. This sets a hard stop.”

Kocot also said forming a commission would allow lawmakers to study the best practices of other states to see what they allow for public access to records versus privacy rights of constituents who communicate with legislators.

“This is an extremely complex issue,” Kocot said. “It raises the conflict between access vs. privacy. I routinely get requests for health care help from constituents who send me their health information, from families dealing with [the Department of Children and Families], from spouses in bad situations, from people looking for work. How we deal with each of those issue areas is very complicated. They think they’re communicating with their representative and don’t necessarily expect their information to show up on a blog or in the newspaper.”

The bill now heads to the Senate but, with Wednesday the last day for formal sessions until after the holidays, will not be taken up until January.

“We will not have time to allow Senators to review the Public Records bill, file amendments, and debate,” on Wednesday, Peter Wilson, the spokesman for Senate President Stan Rosenberg, wrote in an email. “We will address the legislation when we return to formal sessions in January.”

If the Senate does make changes, the bill would have to be dealt with by a conference committee before it reaches the governor’s desk. Wilmot said advocates will work with the Senate to try to make changes to beef up the bill, such as the extended time for compliance.

Lurking in the wings is a potential ballot question by Secretary of State William Galvin to reform the public records law. A spokesman for Galvin said the secretary would continue the process of filing signatures and moving forward but said he supports the bill that emerged from the House and could drop his effort, depending on the Senate actions.

“He would prefer the Legislature to act,” said Brian McNiff. “If it does not act, he will go forward with the proposal…He’s fine with the [House] bill as it is now.”

Public records bill does little to open access

Public records bill does little to open access

Measure calls for attorney fees and fines for noncompliance but could create more potential delays by agencies

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.