State panel advances public records bill
Legislation aimed at significantly strengthening the public’s access to government documents got the green light Thursday from a key legislative committee — signaling that lawmakers may be ready to overhaul Massachusetts’ current public records law, considered one of the weakest in the country.
Advocates hailed the bill’s emergence from the joint House-Senate committee as a positive sign for a long-hoped-for reform of a law for years seen as an affront to open government.
“It’s a fantastic bill and has essentially everything we wanted,” said Pam Wilmot, executive director of Common Cause Massachusetts, a good-government group. “The signs are very good that the reform will get done and done fairly soon. It would be a great step forward for transparency in Massachusetts.”
Under state law, government records are presumed to be public unless protected by an exemption, such as those for active investigations and trade secrets. But advocates contend that requests for those public records, from government e-mails to contracts, are sometimes met with inaction because there’s no real penalty for noncompliance.
The new legislation would provide lawyers’ fees to requesters who, according to a court, were wrongfully kept from getting public records. Advocates say that would provide a strong incentive for cities, towns, and state agencies to fulfill public records requests.
A legislator who has shepherded the bill through the committee underscored its projected impact.
“The most important part of this bill deals with the fact that the existing law allows some officials to thumb their nose at the law. This bill changes that,” said Representative Peter V. Kocot, House chairman of the Joint Committee on State Administration and Regulatory Oversight.
The bill would also cap some fees for public records, make it easier for requesters to get documents electronically, and require agencies to have a point person to assist with requests. Those point people, legislators say, would help the public figure out how to get documents by finding the right person to contact.
Gavi Wolfe, legislative counsel at the American Civil Liberties Union of Massachusetts, gave the bill a “thumbs up,” saying there’s a consensus that the current law is “seriously broken and this is a serious fix.”
But the redrafted version of the bill that emerged from the committee Thursday afternoon also weakens access to records in some ways. It moves the mandated response time for requests from within 10 days to within 15 days.
And it would allow officials to ask Secretary of State William F. Galvin’s office, an arbiter of what records are public and what records are not, to allow municipalities and state agencies up to 15 days extra time beyond the standard 15 days to comply with requests in “exceptional circumstances.”
It would also allow officials to ask the secretary of state’s office for authorization to charge citizens for the cost of locating, reviewing, or segregating documents.
The bill defines “exceptional circumstances” as one or both of the following:
■ More than 15 requests from the same person in 30 days — but requests made in the public interest, such as many from the news media, are exempted.
■ A response that is expected to exceed 500 pages and is projected to take more than 20 hours to pull together.
Kocot said the provision is meant to protect town clerks in small communities who are sometimes “barraged with multiple requests over a small period of time.”
Wilmot, of Common Cause, said the addition of the “exceptional circumstances” provision is not a big loophole.
Wolfe, of the ACLU, said the goal all along has been a “balanced bill” and said the provision is an element of balance.
But the Massachusetts Municipal Association, which represents cities and towns, still opposes the bill in its new form, said its executive director, Geoffrey C. Beckwith.
“We have grave concerns,” he said. “This legislation places an enhanced burden on cities and towns but reduces the amount they can get in reimbursement” from those requesting public records.
He said that the bill would create a significant new “unfunded mandate” on communities, and that his organization would work to make sure changes to the public records law do not hit municipalities with extra costs.
The legislation does not change one part of the legal status quo: The state’s public records law does not apply to the Legislature or judicial branches and still would not, should the bill become law. And the bill would not close numerous other loopholes — such as the governor’s assertion that his office is exempt; or recent rulings saying police have unfettered discretion to withhold mug shots, arrest reports, and even names of officers accused of drunken driving.
Kocot said he hopes the Legislature will review the exemptions and decide whether to extend the bill to cover other branches of government once this bill becomes law.
“This is a first step,” he said.
The bill was referred to another committee, where it could be changed again. Then it could come to the House floor for debate and a vote, and then to the Senate. There’s no guarantee that it will become law.
But Speaker Robert A. DeLeo and Senate President Stanley C. Rosenberg indicated support.
“The speaker is supportive of modernizing the public records law of the Commonwealth,” said DeLeo spokesman Seth Gitell.
“I strongly support updating our public records laws and I thank the members of the committee for putting out a strong bill,” Rosenberg said in a statement. “Making public documents more accessible helps build trust between government and the people we represent. The Senate is committed to swift action on this issue.”
Asked Governor Charlie Baker’s position on the bill, an aide said the governor would want to first see the final legislation, should it reach his desk.