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.
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.
The bill requires attorney fees to be awarded, except in certain defined situations.
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.
Please support. Thank you.
Thank you for supporting the bill. I wrote about my experiences with public records law a couple months ago here: http://www.progressivemass.com/olympicsandpublicrecords?utm_campaign=publicrecords&utm_medium=email&utm_source=progressivemass.
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.
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
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!
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.
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’?
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.
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.
Public Records! I need the sitting state congressional membership to explain PUBLIC!
Let’s see.. If the IRS asks for my records and it’s proved that I’m right, and it’s cost me some personal time… do I get to ask them to compensate me? Nope.. thought not…
It’s the responsibility of the accused to defend themselves, if it’s me, of it’s the government. Please support the Senate version of the bill and put the “public” back into “Public Records”
And.. in an age where information should be a commodity, easily accessible and cheap to produce, we need to drag the state into the current (and latter half of the prior) century.
I commend the support for transparency. My understanding of the bill makes me feel like it’s a step in the right direction, but not far enough. Full transparency would require the information be available for free, not just to those who can afford the fees. If these records are already public, then putting roadblocks in the way only makes it look like municipalities and state organizations have something to hide. Frankly, I like to believe we’re a commonwealth composed of better people than that.
I had my first experience with the MA public records system recently. You may know that there was a major drive to see if professors were being influenced by the food industry by the US Right To Know organization (http://usrtk.org/). They are obtaining records from many states. So I tried MA to see how that would work.
My experience is here: https://www.muckrock.com/foi/massachusetts-1/laura-n-vandenberg-electronic-correspondance-21816/
I have 90 days from a paper letter from the Sec. of State’s office to appeal or change the request. I am waiting to see how the legislation goes.
But how would I know until after the records come if the request was deemed “frivolous” or not? Or maybe it would be to the state, but not to me? I don’t understand how that would be determined.
Anyway, my experience has apparently been very different than the NYT journalists or USRTK folks have had. They are getting emails from plenty of locations.
I support greater transparency and compelling better responsiveness from public agencies. Fee recovery should not be reciprocal for the reasons given by Alex Marthews.
Will, Thanks again for asking for public input! I’m delighted that you’re in favor of the public records bill. I’m appalled that the state of Mass. is ranked near the bottom of 50 states on this issue.
Re. your question of a “frivilous issue” – is this just a hypothetical, or is there data about such requests? I support Rich Carlson’s comment about not charging for this.
The Judiciary needs to be more accountable . It seems that many of the public records requests that I and others go ignored. This is shameful when the courts hide behind their black robes , the same people who are suppose to be about justice and yet are the same that will ignor requests public records request. There also needs to be a punitive section in the bill , it should not be just about attorney fees but also a percentage of say 25 % for damages and full access to the records requested at no cost. Putting some balance into play or maybe a fine to the employee who specifically shows a willful disregard for a public records request.
My view on this is to support the bill on public records. Transparency is definitely a big step forward I am all for it.
Themis sounds reasonable. Attorney fees should be paid the party against whom the judgement resides.
I am in favor of this bill as written and would not approve of attorney’s fees against citizens except as a matter of discretion and on a showing of the filing of a frivolous suit.
The Senate version is far better than the House version.
I filed over 30 public records requests at city and state agencies from 1995-2015.
Because of inadequate penalties and poor enforcement, most of my requests suffered indefinite postponement, unlawful refusal, loss of the request, and/or thousands of dollars in “research” and “printing” costs from obsolete record-keeping systems.
There was no recourse for these setbacks, so the new law will be a great improvement.
Yes! Winning plaintiffs should recover their legal fees; otherwise, citizens can’t afford to use the law.
No! Losing plaintiffs should not have to pay the government’s legal fees, because: (1) that encourages agencies to be uncooperative; (2) keeping agencies liable for all legal fees encourages to reduce legal fees via better compliance; (3) a losing plaintiff’s costs are so substantial anyway that there frivolous losers will be a rare thing.
I support the senate version of the bill. The current system is a disgrace and allows government agencies to ignore requests and stonewall the release of embarrassing information. Frankly, most of this information should be automatically posted on a web site at regular intervals without any request.s
I do not support making a losing taxpayer pay the government’s attorney’s fees. That will just intimidate people into not making legitimate requests. The courts can already deal with frivolous and harassing suits.
Asked for records in a 30-year-old case of a man I was convinced was innocent of the murder for which he was serving a life without parole sentence. It took months of reminders before the DA obtained seven boxes of evidence. But then I was told I would have to pay to have a clerk redact all the names and addresses (even in the transcript, which I already had along with their names and addresses) and then for a lawyer to review the redactions made by the clerk. They would not tell me how many of the boxes contained documents and how many were items. In other words, no clue as to what the bill would be. Even tho’ he was indigent I would have to pay. In other words, the public records are public only if you give them a blank check for them. Also, with redactions, not much of an investigation was possible.
I think this action is long overdue. I have had much difficulty in obtaining public records from the town I live in. In the most egregious example, when I was chairman of the Personnel Board in Town, I was refused access to some records (employee’s timecards) as part of an investigation into a problem with large amounts of unaccounted compensatory-time-off. The Town insisted that the Board did not have access to the information and very grudgingly and at a significant cost agreed to provide the information to the Board once we filed a public records request.
Issues I’ve had with public records requests include:
1. Failing to respond in time, knowing full well that this just delays the inevitable; there’s no penalty, and the supervisor of records never actually imposes a fine or any real decisive action.
2. Outrageous estimates of cost for providing emails on a specific topic; for example claiming that to get a number of email messages requires hours of effort of the highest paid person in the town, then indicating that the email messages must be printed and content manually redacted.
3. Providing public records in hard copy even when the content being requested is available in electronic form.
4. When providing data in electronic form, printing an existing document (that is available in some searchable format like Microsoft Word, or PDF), then scanning it and sending it as a collection of images or an enormous scanned PDF which is neither searchable, and often illegible.
I hope the new measures will give the supervisor of records some enforcement actions, and I hope that similar to the dreaded “mandatory minimum sentences”, that the supervisor of records is required to enforce actions. Otherwise, we’ll have another set of rules like the OML which are toothless because the AG’s office never actually penalizes the offender.
Some years ago, a town resident requested eevery test, quiz, project and homework aassignment given by every teacher in a ccertain department at a town secondary sschool. I viewed that request as bburdensome and interfering with operation of the department. I would have lliked the request to be mediated by an independent mediator.
I support the language of the Senate bill. How would it handle such a request?
Thanks for your efforts on this matter; it is appreciated.
As regards the issue of frivolous requests for public records, I would concur with several of the other people who have commented that the threat of having to make reimbursement for legal expenses could well be a deterrent to people legitimately looking for information.
I would suggest waiting until the revised Public Records Law has been in practice for a couple of years before reviewing its implementation and seeing if anything needs to be done to curb “frivolous” public record requests. Why propose a solution when we do not know if there is a problem?
One matter unclear to me about the Senate bill is whether it covers the previous exemptions of the Executive, Legislature and Judiciary to public records laws. Without opening the three main branches of state government to full public access to records, I would have to conclude the Senate bill does not go nearly far enough.
Maybe I am missing something here, but would appreciate your thoughts and comments about the expansion of the public records law to cover more thoroughly not only municipal and local governments, but also every branch of the state with no exemptions for the Legislature, Executive and Judicial branches.
Maybe the question should be also framed as how do we pay for the cyber infrastructure required above and beyond the normal civic day to day operations by the local government staff needs? Sure, I (or someone) would like to sit down at a PC and do an exotic data mining expedition tying up public cyber processor resources, public servant time, for what is needed. A tragedy of the cyber-commons in the making. But it looks like another state mandate on communities and there goes my property taxes into turbo drive. I would be willing to support some type of user fee structure that would not be excessive,
I have tried getting public information from the 105 retirement groups in the state in order to inform their members re legislation and to gather information. They say if I do not have a certain #, which is basically for tax purposes, I cannot have the information. Our organization has no paid positions, we ALL donate our time. We do not have to file taxes so why get the #? Many of them then turned around and said for a fee I could get the lists. The fee ranged from $87. to over $5,000 (and this was NOT from the State Retirement System but one of the county ones). We are doing their work for them– we are paying for printing of the letters and postage and they want us to pay for the names of veterans, to gain support for our veteran’s bill, members affected by the Option B/C penalties of prior to July 2004 for support for that bill. We wanted those living out of state to make them aware of our work of avoiding paying to the state in which they are now living taxes on that part of the pension that they contributed to and already paid taxes to Massachusetts. We have something in place in SC, but only retired teachers are making use of it because only the MTRS and the Boston Retirement System provided us with the information we wanted without a charge. We have a bill in the Appropriations Committee in ME, a bill filed in R.I and VT to date to address this and again only those we are able to reach know about it.
Senator, something needs to be done in fairness to the retirees who are being kept in the dark about important things. Business have no problem getting the information they want for personal gain. Knowing your interest in fairness, I am sure you will address this issue!
(Miss you on the Public Service Committee!)
I have never made such a request & I suspect most voters have not. But my question is why have I read that many other States have had public records available for whoever seeks & there is no fee. How do they do that? Shouldn’t the Senate get into some research on what other States have done, and how they do it instead of Ma. guessing what might work with the least outcry from such as State Police?
I agree with a number of others. The idea of frivolous is solving a problem we don’t know to exist. I understand that municipalities are worried about costs. The answer? provide the information in a reasonable amount of time. If it’s truly a public record, then citizens shouldn’t have to sue. I think that threat will put cast a pall on record finding.
If there must be a sop like this, then I suggest the burden of proof be on the municipality, to prove that the intent was there simply to injure – and that bar should be very high indeed. But this is such an important issue that you should do everything to avoid attaching that payment burden to this.
I’m the Chairperson of the Watertown Historical Commission and I do a good amount of research on Watertown native-son and architect Charles Brigham. He lived from 1841 to 1925 and practiced from 1866 to 1920, an amazing 54 years.
Part of what I do is track down references I find in newspapers to building permits in individual cities and towns. In Watertown, it’s easy, as I go and see the folks in the building permit and get a copy of the building permit that lists Brigham as the architect.
In Newton I’ve had a problem. The modern building permits (about 2005 and onward) are available online, but the historic ones I’m interested in are not. Newton requires that I complete a “Plan Search Form” and submit a non-refundable fee of $25 for each property that I’m interested in having them search for. Yes, I know I’m not looking for plans, but this is what they require for searching for a simple building permit.
Here’s a link to Newton’s Plan Search Form, for your information: http://www.newtonma.gov/civicax/filebank/documents/35882
It seems too expensive for such a simple request.
Thanks for listening to my story
My comments are on the receiving end as Town Treasurer. I work through the Town Clerk. Any request I get directly I keep the Clerk in the loop.
The types of request I receive deal with public employee salaries,and Town debt issues/how much. My first step is make sure I understand what they need and have a brief conversation.
Many times the request is not well thought out such as I want all the employees salaries for the Town. This is the 15 second conversation, I can get you that info, 1300 employees including part time people. Is this what you need. Every time except for the Mike Boudette Northeastern exercise they say not really. How about the top 50 employees for Town,School and Light Department by job title that tie back to the year end W-2. I will E-Mail you the info free of charge. I think two way conversation helps move the request and everyone is happy. The occasional history exercise going back 11 years presents some challenges as far as timing. I tell the person looking for the data let me have your E-Mail and I will keep you posted on how we are doing. This seems to be acceptable. The majority of the requests are from newspaper reporters writing an article. So far we have done a good job answering these requests. Just wanted to give you a perspective from a Town side.
Floyd, very helpful.
I think that you handle this exactly right — if you can have a conversation, you can usually keep it within bounds.
All the best to you.
Regarding the attorneys’ fees, I guess I have a question about who all is covered by this bill.
Does it apply only to government agencies, or does it extend to any organization or individual who received state funds (e.g., universities, scientists who receive state grants, etc.)?
If it only applies to government agencies, then I feel that state’s attorney’s fees for frivolous requests should not be borne by the person requesting the records. Rather, perhaps a nominal and limited fine could be imposed – enough to deter wasting taxpayer resources, but not enough to be abused by the state.
However, if it covers any entity receiving state funds, then there ought to be a measure in there to discourage frivolous and harassing information requests. Scientists, particularly those who are public advocates of the science behind sometimes controversial subjects (e.g., GMOs, climate change, etc.), can frequently find themselves the target of harassing requests. These have the effect of taking time away from their research as well as chilling the public discussion of the state of the science.
Any such measure would need to provide clear guidance as to what constitutes “frivolous”. There should also be reasonable limits on attorneys fees that can be recovered, by either party, to ensure that those fees do not, in themselves, become punitive and chilling to the free sharing of information and ideas.
It applies only to public agencies, not those receiving funds.
There needs to be a significant penalty ($5,000 isn’t enough) against agencies which do not comply with records requests within the designated time frame. Otherwise agencies will continue to ignore the designated time frame as they currently do for various other tasks.
Exorbitant fees requested for releasing information sometimes seem deliberate to stymie accountability as in this horrible case:
Dear Sen. Brownsberger,
Thank you for posting this and asking for feedback. As someone who recently moved into your district from another state, I appreciate the ability to get to know my representatives.
I’ve read articles about this issue and found it quite shocking, especially after my experience as a journalist for several years when I received little push back when seeking public records.
To answer your request for feedback, my recommendation is to leave the bill as it is. Fear of losing a court case could have a chilling effect on citizens or media who are seeking information in the public interest. I believe that we should err on the side of helping the public get more access to records, not less.
The shocking accounts of records not being turned over, or being offered for exorbitant funds, demonstrate the need for much more drastic reforms than those proposed. However, we do have a compromise on the table, and we should keep it as much on the side of those seeking information as possible.
Please help make our government more transparent – it’s the only way to ensure that it represents us.
It appears that Senator Brownsberger has just introduced this disappointing amendment to the public records bill:
“Redraft 15: Attorney Fees
Messrs. Brownsberger and Joyce moved that the bill be amended by striking everything that appears in lines 241-255 after the words “reasonably incurred to the requestor” in line 241 and inserting in place thereof the following:- “or the agency or municipality in any case in which the judge finds the opposing party’s claim or defense was not advanced in good faith.”; and by adding the following words in line 259 after the word “requestor”:- “if the agency or municipality did not act in good faith”.”
This amendment will, in my opinion, gut the bill. If requestors must, in order to get their attorney’s fees covered, not only prove in court that the agency should have provided the record, but prove somehow that the agency withheld it in bad faith, then they will in practice hardly ever get their fees paid by the person at fault; and that, in turn, will prevent all but the richest people and organizations from being able to sue to obtain public records.
I really don’t agree — there is a practical judgment call here: I think that judges are perfectly capable of recognizing bad faith and punishing it and I think we should trust them to do that.
There is much positive in the Senate bill. Do not erase the positive in conference.
There is a real need, somewhat accomplished in the Senate bill, to restrict, if not eliminate, the ability of state agencies to subvert compliance with public records requests by making outrageous requests for “costs” preliminary to producing records.
I think that the reason for the attorneys fees provisions are a response to this terrible track record by many state agencies. The history of statutory provisions of attorneys fees in successful litigation is to encourage lawyers to take civil rights cases that are not affordable to the citizens seeking relief. This is not a situation, like business litigation, where there is symmetry to each side.
Thus the notion of a losing petitioner paying the state is neither consistent with the reason for the attorneys fees provision or fair. Once a state agency has been assessed attorneys fees for failing to provide what it has a duty to provide, it should learn its lesson and not repeat the offense. If that is the case, then there will be few awards of attorneys fees, which become necessary only when a state agency fails to comply with its duty of transparency and informing the public.
Good morning, Will. I’ve had substantial experience with FOIA requests over the years, and while some governmental agencies (generally the wealthier municipalities) can be prompt and fully compliant, many municipalities and agencies are not. This makes the imposition of attorneys’ fees a crucial stick to ensure governmental compliance. I’ve no experience of the opposite situation, where a records request is unreasonable or burdensome – – government should create and retain records in accordance with law, and not engage in foot-dragging or unnecessary redaction.
Thanks for weighing in. Mandatory attorneys fees without a showing of bad faith is an awfully big club. But that’s what went through.
The vote may already have been taken on this bill, which is supposed to go into effect on July 1? But for the record, I agree with the statement made on Feb. 3:
“Thus the notion of a losing petitioner paying the state is neither consistent with the reason for the attorneys fees provision or fair. Once a state agency has been assessed attorneys fees for failing to provide what it has a duty to provide, it should learn its lesson and not repeat the offense.”
I hear from Common Cause that it is almost impossible to prove “bad faith” on the part of an agency that fails to comply with a speedy records request. This would discourage many from pursuing records aggressively. More up-to-date information technology on the state and municipal level will help enormously.
Thank you for providing the open and candid discussion of this bedrock issue of democracy.
This is likely moot at this point, but I also felt moved to weigh in.
I adamantly disagree with your characterization of attorney’s fees being paid out by the loser as “symmetric”. Such an analysis fails to account for the spending capacity of the two parties — which is not attorneys versus government, it is people (paying attorneys) versus government. On the one hand is usually an reporter or citizen of modest means, or a small newspaper; the other is a government entity, which usually has 5, 6, or 7-figure spending capacity to fight in court, including full-time staff counsel. It is David versus Goliath.
The mandatory attorney’s fee provision is intended to shape the incentives. If your amendment blows open a glaring unknown of the judge’s perception of bad faith being the basis for attorney compensation, would attorneys find such a gamble attractive? If this withers the incentive for 90% of attorneys to take such cases, then, absolutely, the provision renders useless this core feature of the bill. Remember that having a guaranteed backstop of accountability (i.e., court) based on objectively observable behavior rather than subjective interpretations of intent (an all-too-common tactic in legal code to give wide-ranging powers to government actors in the midst of conflict) is the basic fairness transparency guarantee we’re fighting for in this once-in-a-30-year opportunity. Let’s not blow it.
If the main reason for symmetrical fees or a bad faith requirement is to ward off frivolous lawsuits against government entities, there are other ways of setting up the incentives without killing off the incentives we need to maintain accountability. For instance, if the same requestor sues the same entity more than three times, then a “bad faith” or “symmetrical” provision kicks in. Or, lengthen the response timeline if the same requestor makes several requests in quick succession. Make the law respond to the proven track record of frivolity on the part of the requestor.
Again, perhaps this is moot, but maybe someone can provide a tally of how many of us writing either support or oppose your “symmetric” attorney fee or “bad faith proof” proposals? In my quick scan, it looks like at minimum 5 against, 1 in favor. In which cases do you defer to your constituents’ and allies’ insights versus go against them? Is there something exceptional in this instance that would prompt you to have gone against our insights? Some overriding principle you hold to, or special expertise in the subject matter?
Thank you as always for taking this issue seriously.
The issue is moot for now. My amendment did not prevail. We sent the bill to conference committee by a unanimous vote. I will play no role in that process.
But, to reply: I don’t decide issues based on a tally — I weigh the arguments I hear from constituents and from all other sources. There are other posts on this website where the majority of commenters disagree with me pretty strongly and I adhere to my positions. I call things the way I see them with the benefit of constituent input.
The symmetry issue is to me one of fairness. I really don’t think it is consistently a matter of David vs. Goliath. Many communities have limited means and many newspapers have considerable means. Don’t think for a second that it is easy for communities to run up legal bills. For Cambridge yes. For most other communities not so much.
Put the symmetry issue aside. We can tell each other stories about where the balance of power lies, and we won’t really resolve that. But, for the sake of argument, I’ll concede that point — and I offered that concession on the floor.
But as to other issue, I have a different judgment call about how the “bad faith” requirement for attorneys fees against a town would work. As I said above, my take is that this not an impossible burden at all. I just disagree as a legal and practical matter with the characterization of this burden as hard to meet.
May be I am wrong in my take on the facts here, but, as you say, it is moot now.
Thanks for weighing in.
Thank you, Will. I appreciate your letting me know your rationale for the amendment and your vote in favor of the final bill without it.
I’ve been totally swamped over the past month or so and haven’t had time to weigh in on your request for feedback about the public records law before now. It’s probably too late for my feedback to make any difference, but this is an important issue to me, so I’d like to weigh in anyway, on the off chance that it will make a difference.
I welcome any changes to the Commonwealth’s public records law that give it more teeth, because frankly, the current law is a complete joke. In my opinion, the current law is woefully deficient in two ways, and as far as I can tell, the proposed revisions address only one of them, and not enough.
Local governments and state agencies regularly ignore the requirement for responding in a timely fashion to public records requests, and regularly face zero repercussions for doing so. I am glad to see that the proposed revisions introduce some consequences for ignoring the deadlines, but those consequences frankly aren’t nearly strict enough. Given that the “fees” charged for access to public records are often completely bogus, arbitrary amounts with no real relation to how much it costs the agency to provide the records, prohibiting the agency from charging them if they miss the deadline is hardly any enforcement at all. The other half of that enforcement — punitive damages of up to $5,000 of the court finds that the agency did not act in good faith — is useless to most private citizens seeking access to public records who do not have the time or wherewithal to go to court if an agency blows them off. The law should specify automatic, per-day fines for every day an agency is in violation of the deadlines.
Second, public record requests are regularly turned down for completely bogus reasons, and in my experience appeals to the Secretary of State’s office are entirely useless. I once filed a public records request with the MBTA for records that it was clear, beyond a shadow of a doubt, that they had to have. They responded, “Nope, sorry, we don’t have any records like that.” I appealed their response, and spelled out in detail exactly why it was patently absurd for them to claim that they did not have those records. My appeal was summarily dismissed. While I understand that there is as presumption of good faith on the part of agencies, the people responsible for deciding appeals need to have the authority, discretion, and indeed obligation to use common sense and demand a better response from an agency when their first response is absurd.
In the current law, as well as with the proposed revisions, all the requester can do if the agency says they don’t have the records is to sue them. That’s simply too high a burden for many people. There has to be a better answer than that.
Having experience with some aspects of this. I am generally opposed to any sanctions that would shorten the time or award costs to the person (s) requesting the materials unless there is evidence of gross and willful non compliance without mitigating factors. The bill as proposed allowing one way fines and penalties will prove unmanageable and expensive to the agencies or state. My concern has nothing to do with squelching transparency but the opposite avoiding mischievous requests. A Simple resolution would be to make the charges 2 ways, so that frivolous, repeated or unduly request could result in costs to the requestor. If you fell it necessary to change this law make the charges two ways. Richard
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