Public Records Reform

The Senate ways and means committee yesterday released the Senate’s Public Records reform bill. It is a big step forward that has pleased advocates for reform.

In a nutshell, the bill shortens timelines for actual production of records and adds teeth to force reasonable compliance with reasonable public records requests. It also generally encourage municipalities and agencies to do more to make information freely available. For an overview of existing law, please see the Secretary of State’s guide. For a more on the changes proposed, see the Fact Sheet below. For even more detail on the changes, see the Senate Ways and Means section-by-section of the bill or read the text of the bill.

I will be supporting the bill — transparency has been an important theme in my work.

There is recognition in the Senate of the need for reform in the public records area and the bill is likely to receive a favorable senate vote next week in substantially the form now proposed. However, the issue is still very much in flux — the House has proposed a rather different draft and the final product will combine elements of both and possibly additional ideas.

One issue that I am interested in feedback on is the issue of attorneys fees: The Senate draft, but not the House draft, specifies that if a person or news organization has requested public records and has to sue to get them, and a court rules in their favor, then they can recover attorneys fees. The reverse is not, however, currently proposed — in other words if a person or a news organization brings a town into court on a frivolous issue and loses, he does not have to pay the town’s cost of defending the law suit. Whether the losing plaintiff was a major news organization or an aggrieved citizen, those legal bills will be borne by all the taxpayers of the community. Would it be reasonable to have a reciprocal exposure to attorneys fees?

I’d appreciate your thoughts on that particular wrinkle and would also really appreciate hearing any personal experiences you have had with this issue generally. We’ll be voting on Thursday, February 4.

Senate Ways and Means Fact Sheet

Public Access Officers

The bill requires state agencies and municipalities to designate at least one public records access officer.

Time to Comply with a Public Records Request

The bill requires a municipality or state agency to complete a request for public records within 15 days.  If 15 days is not feasible, the municipality or state agency is authorized to extend the timeline by an additional 15 days, but the public access officer is required to issue a written response within 10 days of receiving the request and inform the requestor of the status of the request.

Should the request reasonably take longer than 30 days, the Supervisor of Records is able to grant a single, 30 day extension, ensuring all requests are complied with within 60 days total. The one exception to the 60 day total would be for requests clearly designed to harass, and in such a case the Supervisor could grant additional time.

Allowable Fees

The bill allows a records access officer to charge a reasonable fee for a public record, but establishes parameters for those fees.  The bill requires state agencies to provide 4 free hours of employee time and municipalities to provide 2 free hours of employee time.  Records requests that require more time may incur a fee equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill to comply, but not more than $25 per hour.

The bill limits charges for time spent redacting or segregating unless redaction or segregation is required by law.  If a municipality or agency needs to make redactions not required by law, or if a municipality needs to charge over $25 an hour, the municipality or agency must seek approval of the Supervisor of Records.

The bill authorizes a records access officer to waive or reduce the amount of any fee if the requested record is in the public interest and is not primarily in the commercial interest of the requestor.

Attorney Fees  

The bill requires attorney fees to be awarded, except in certain defined situations.

Enforcement

The bill prohibits a records access officer from charging a fee if the agency or municipality does not provide the record within 15 days of the request or does not response to the requestor within 10 days.  It also requires punitive damages up to $5,000 if the court determines the government entity did not act in good faith.

Modernization of Public Records

The bill requires state entities and encourages municipalities to post online many common public record documents.  It also helps municipalities develop informational technology to foster best practices and facilitate compliance with public records requests.

Senate Actions on Thursday, February 4, 2016:

Here’s the short after-action report: After deliberation, and against some of the advice below, I did introduce an amendment to soften the attorneys fees provision in the bill. I feel that attorneys fees can be a very big club — disproportionate to the actual issues at stake. I feel that they should be awarded only to punish willful bad behavior.

I spent the day negotiating unsuccessfully on the point. Initially, I proposed that municipalities should not be punished with attorneys fees unless they acted in faith and that there should be a symmetric exposure for people who bring law suits against municipalities in bad faith. My primary concern was with the first issue — not punishing municipalities and agencies unless they are acting in bad faith: I signaled willingness to drop the provision that expose bad faith plaintiffs to attorneys fee awards.

However, advocates for the bill reacted negatively even to the simple proposal to make bad faith a predicate for attorney fee awards against municipalities. They suggested in an email campaign that bad faith is impossible to prove and that this provision would “gut the bill.” I respectfully disagree — I think that a municipality that responds in a dilatory way to a legitimate public records request and ends up in court would be running a serious risk of being found in bad faith and facing an attorneys fee award. Judges are pretty good at recognizing dilatory tactics — they spend much of their day dealing with dilatory civil litigants. I think the approach I offered would be fairer. While most states do allow attorneys fees in public records cases, my staff’s best read of available survey data is that only a minority of states make them mandatory without a showing of bad faith.

Ultimately, the bill was sent to the next step without changes in the attorneys fees provisions. The next step for the bill is a conference committee with the House which has approved a very different bill. I am confident that the final bill will be more balanced. In fact, part of the reason that advocates were strongly opposed to my amendments is that they wanted to enter the conference process with a stronger bargaining position. I understand that strategy and did vote in support of the final bill despite my sense that it overreaches in some respects.

Published by Will Brownsberger

Will Brownsberger is State Senator from the Second Suffolk and Middlesex District.

47 replies on “Public Records Reform”

  1. It was outrageous that Rep. Shauna O’Connell had to pay some $800 to access public records in the process of investigating welfare fraud. Moreover her inquiries were for the general public interest.

    When our public servants begin behaving like public rulers as, for instance, in the secrecy around the MBTA pension fund, they give the impression that they are hiding something and misusing their authority: this brings state government into disrepute. If taxpayer money is involved the transaction should be open to scrutiny and at the lowest possible cost. Any reform in this area would be welcome; the stronger you can make it, the better.

  2. Hi, Sen. Brownsberger: I urge you to support the Senate bill and to hold the line on adopting changes from the House. The Senate bill is far far better.

    On the particular question of having costs borne by the requester, that sounds like a huge change that would not be favorable to the public or to journalists, who increasingly lack financial resources.

    I’m not aware of any other state that routinely awards costs to the government in records requests/FOIA issues. Given how poorly Massachusetts’ law is in comparison to other states, this does not seem to be a good time to break new ground.

    Frivolous suits are not very likely, and the court system is well-equipped to deal with them when they happen. Furthermore, most municipalities already have their lawyers deal with public records administrative appeals (before the Supervisor of Records); the cost burden for a City Solicitor or Town Counsel to defeat a frivolous appeal in the superior court is not going to be that much more than the cost burden to defeat a frivolous appeal at the administrative level. And that is because most public records lawsuit are decided at the summary judgement stage without discovery.

    Also, the primary purpose of fee-shifting provision is to enable requesters to attract counsel to litigate on a contingent basis. Few lawyers are likely to take up cases they consider to be frivolous losers. And I doubt the fee-shifting provision would increase the liklihood of pro se lawsuits much.

    My personal experience is that the largest issue in practice with the public records law is that municipalities drag their feet. (Yes, there are some municipalities and agencies that are actively breaking the law, and some which produce ridiculous fee estimates. But the vast majority are trying to follow the law, just not always in an exemplary fashion.) The current law gives them 10 calendar days to respond, and many structure their workloads to take all ten days. (The law also requires response “as soon as practicable” but that never seems to happen.) And in many cases, negotiations between the requester and the municipality take multiple rounds, each of which can be construed as taking another ten days. So in today’s law, the ten days easily becomes twenty days or thirty days.

    So in a practical sense, I do fear that all of the proposed changes are going to extend the amount of time that agencies take to respond, moving from 10 days (which is really 30 days) to 15 days (which is really 45 days) or much much longer, for many of the run-of-the-mill ordinary kinds of public records requests that journalists and the public make. Ones that aren’t sexy enough to lead to court cases or sob stories. In exchange for that delay, we get the chance to sue in the really egregious cases.

    I hope that chance to sue is worth it. It’s pretty rare that I have wanted to sue, but it is absolutely regular and ordinary that I am worry about the ten days (or thirty days). But I urge you to not adopt the time extensions that the House has proposed, because they really and truly hurt the everyday case.

  3. I guess on the issue of attorney fees that you cite, it might be fair to not burden the taxpayer with the costs of ‘frivolous’ law suits against a town but does a plaintiff’s loss against a town automatically define the suit as ‘frivolous’?

  4. Will,

    Thanks for asking about this important issue.

    The current process makes it very hard, time-consuming, and too often expensive to get records that are supposed to be public. Too easy for City and State agencies to delay and create barriers and if you eventually are lucky enough to get anything it is often printed hard-copies instead of electronic files. If you want data, you want it in the data file format (such as Excel), not PDFs and not paper.

    Fixing the laws would be great and there are also cultural issues in city/state agencies that need to be changed so there is less secrecy.

    Perhaps agencies should have someone designated whose job is to help citizens get records. Right now it seems like the agencies, the “keeper of records”, staff attorneys, and most others see their role as keeping their public records private.

  5. please do not water down this bill. please hold the line in the conference committee. if anything it should be stronger, especially the requirement for agencies to post these records (which are 99% made on computers) online.

    thanks for the chance to comment!

  6. I have no experience looking for public record. But I have in term of legal fee opposing a town. Alex Marthews comment hit right home for me: hard to compare one year of college tuition for my kids with a bullet item deep in the town budget. If frivolous law suit become an hassle, then the law can be amended if/when the problem has to be dealt with in a timely manner. My $.02

  7. Hi Will

    I have had substantial experience with public records reform, and have been involved with this campaign to reform the law.

    I strongly support mandatory awards of fees, and it ought not to be reciprocal. Reciprocity is appropriate for situations where there is an approximate equivalence of power. Here, the problem at issue is not municipalities and public agencies being monstrously overburdened with a flood of unfulfillable and malicious records requests; the problem is that municipalities and public agencies have, over decades, grown used to ignoring their default obligation to provide public records. Even the simplest of requests is nearly impossible to get fulfilled within the ten days the current statute called for; and a request we had to the Boston fusion center took ten months and two appeals to the Secretary of State’s office, before we were allowed to see a variety of non-responsive documents and one, almost wholly redacted responsive document, which we could only unredact because the equivalent agency in Colorado had taken a more open approach and put up their version unredacted and online.

    In truth, it is the public agency that holds the information, and who therefore holds essentially all the cards. Reciprocal awards of fees would essentially maintain the current situation, where poor people who request records are at a substantial disadvantage relative to rich people. Rich people and organizations can more easily afford to assume the financial risk involved in litigating the nonrelease of records.

    The core element of public records law in the many, many other states that do this, is the mandatory, non-reciprocal award of fees where courts rule in the plaintiffs’ favor. In Florida, where a bill was recently introduced to make fee awards non-mandatory, it was widely and accurately described in the press as a “gutting” of the law.

    Please vote for the Senate version of the bill in this respect.

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