Costs, delays keep public e-mails private in Mass.
Former secretary of state Hillary Rodham Clinton’s use of a private e-mail address shocked government watchdogs, because the practice could have blocked access to public documents. But in Massachusetts, even e-mails to and from government addresses are difficult to obtain.
Agencies routinely charge high fees — often several thousand dollars or more — or delay responses, dissuading the public from requesting information that should be readily available. E-mails between state officials are usually subject to public records law.
“Most routine requests should be free to the public in the spirit of the ‘open public records’ law,” Peter Caruso, an Andover attorney who specializes in First Amendment law, wrote in an e-mail. “The cost jettisons public records into secret records if [the cost is] too prohibitive for the people to see.”
Experts agree the issue will become even more important as government officials increasingly communicate through e-mail, text messages, and other electronic channels.
Roxbury Community College gave a faculty union a bill for $18,648 for memos and e-mails sent and received by administrators, such as college presidents, deans, and human resources directors. And the Massachusetts Bay Transportation Authority recently billed the Globe $3,000 for requesting e-mails sent and received by Beverly A. Scott, who in February announced her resignation as general manager of the MBTA.
The frequent battles over obtaining e-mails highlight longstanding concerns about the Massachusetts public records law, which the Reporters Committee For Freedom of the Press, an advocacy group, considers one of the weakest in the country.
“Journalists and members of the public are placed in this terrible situation where they have to decide: ‘Do I want to be informed and pay thousands of dollars for it, or do I have to stay in the dark because I can’t afford this exorbitant fee?’ ” said Adam Marshall, a legal fellow with the group, which is based in Washington, D.C.
Agencies that charge such fees say they are necessary, and legal. They cite the stipulation in the state law that allows them to charge “reasonable” fees for the information. And they say the thousands of dollars are sometimes essential to give an employee time to search through voluminous e-mails, or print out and send the documents.
Lauren F. Goldberg, a managing attorney at Kopelman and Paige, said agencies often struggle with the time-consuming task of sifting through hundreds of e-mails.
“Virtually every custodian of public records seeks to comply with the law and wants to be able to, but there are practical issues that make it very hard,” said Goldberg, whose firm represents about 120 cities and towns.
In February, the Globe asked the MBTA to provide e-mails written or received by Scott that concerned weather and service during the height of the crisis in the transit system following a series of snowstorms.
In a letter, the T estimated that an attorney would need to spend 31 hours to review 629 e-mails — at a cost of $1,550. The T also estimated the agency would need to print nearly 7,300 pages at a cost of $1,460. Then, officials would need to send the pages to the Globe, which would cost roughly $100 in postage.
The grand total for the bill? $3,110.
Fox 25 reporter Mike Beaudet also requested five days of e-mails from Scott and a T spokesman, and received a bill of $15,317.
Questioned about the costs, a T spokesman said the Globe reporter could either narrow down the request or appeal the price tag.
The spokesman was referring to a stipulation in the law that allows the public to appeal the cost estimates to the office of Secretary of State William F. Galvin. That’s what happened in the case of the Massachusetts Community College Council, a faculty union that requested letters and e-mails from 14 community colleges across the state.
In response to the request, each of the colleges charged the union more than $1,800. In all, the requests would have cost the union about $132,000, according to the group’s attorney, William H. Shaevel.
Shaevel appealed the charges. In a March 20 ruling, Galvin’s office ordered the colleges to revise their estimates.
Brian McNiff, a spokesman for Galvin, said that’s the way the law is supposed to work: If costs are too high, the public can appeal.
But such rulings are not the norm. A Globe review in 2014 found that in 50 of the most recent cases at the time, Galvin’s office ordered agencies to release more documents or justify its fees only 10 times.
In February 2014, the Executive Office of Labor and Workforce Development gave Globe reporter Megan Woolhouse a bill for $2,932 for e-mails between Deloitte Consulting and two high level administrators. When Woolhouse appealed the estimate, Galvin’s office took the agency’s side and said the fees were justified.
Kevin Goldberg, legal counsel for the American Society of News Editors, said agencies also frequently use delays to discourage the public from requesting information.
In February 2014, Globe reporter Kay Lazar requested that the Massachusetts Department of Public Health provide e-mails from Cheryl Bartlett, the former public health commissioner, who resigned in October, and Karen van Unen, the executive director of the state’s medical marijuana program.
More than six months later, the agency provided a limited number of e-mails, many of them heavily redacted.
In some cases, government entities say public records law doesn’t apply to them.
Former governors Mitt Romney and Deval Patrick have argued that the governor’s office is exempt from the state’s public records law, because of a 1997 Massachusetts SJC decision that said the governor is not “explicitly included” in the law. Governor Charlie Baker’s staffers say they agree with the ruling.
The state public records law also doesn’t cover the Legislature or Judiciary. There are also other exceptions, such as legal advice from attorneys or messages containing medical information.
Government watchdogs and advocates for strong open records laws say agencies should be making stronger efforts to make access to public information cheaper — or free — without intervention from the state or long delays.
“If all the decisions and deliberations are happening on these electronic channels that are taking place out of sight of the public, it’s almost as if there can be this shadow government that’s operating in this electronic world,” Marshall said.