The Massachusetts Legislature is moving forward with its first major overhaul of the state’s public records law in more than four decades, but critics say House lawmakers significantly watered down the bill after complaints from state and local officials.
The revised bill, which is expected to be debated on the House floor Wednesday morning, will include measures designed to reduce fees for copies for public documents, force officials to better track requests, and potentially for the first time penalize agencies that flout the law.
But the bill also gives officials significantly more time to respond to requests than the current law and doesn’t go as far as the original bill in many ways. For instance, the original bill by state Representative Peter V. Kocot required that citizens be awarded legal fees if they sue to obtain records and win; the new version gives courts the discretion to award attorney’s fees.
“On most provisions, it is not as strong as the Kocot bill,” said Pam Wilmot, executive director of Common Cause Massachusetts, one of more than 40 groups that want the law strengthened. But Wilmot said she thought the bill still marked a significant improvement over the current statute and expressed hope the proposal could be improved in the Senate, which is unlikely to vote on the bill until next year.
The changes by lawmakers on the House Committee on Ways and Means also appear to have mollified the Massachusetts Municipal Association, which blasted the original version as an “unfunded mandate” that would be expensive for cities and towns.
Geoff Beckwith, executive director of the group, said the new version “includes greater flexibility for cities and towns than previous iterations and drafts of the bill.” Beckwith said the group has no plans to oppose the legislation.
By many measures, the state currently has one of the weakest public records laws in the country, and, even if the bill passes, Massachusetts will still lag in government transparency. Local and state agencies routinely take months or longer to respond to requests, deny documents, or demand thousands of dollars for records. The State Police even billed one requester $2.7 million for a database and tried to charge another person $710 just to find out the fee for other documents.
In addition, there are no effective penalties for violating the law. Massachusetts is one of only three states where citizens can’t recoup their legal fees, let alone damages, even if a court rules that the government agency wrongly denied them records. And the attorney general’s office couldn’t think of a time when it has ever prosecuted anyone for violating the law.
Open records advocates praised the bill for reducing the costs of copies to 5 cents a page, down from 20 to 50 cents under the current law. The bill also bars agencies from charging labor fees for the first few hours spent on requests and gives the attorney general more power to enforce the law.
But it also gives state agencies up to 60 days and municipalities up to 75 days to comply with complex requests, far more than the 10 days allowed under current law. It also allows officials to outsource some requests to vendors. And like the current law, the bill contains no limit on the number of hours agencies can bill citizens to review and black out documents, a provision agencies often use to justify charging citizens huge fees for records.
“The bill is a mixed bag,” said Justin Silverman, executive director of the New England First Amendment Coalition, another group leading efforts to fix the law. “There are several improvements that could help the public obtain information. But there also changes that could make it difficult to get that information quickly and inexpensively.”
Kocot, the bill’s primary author, noted that the Ways and Means committee redrafted the bill after a number of meetings with advocates on both sides.
“We tried to listen to as many parties as possible to make this work,” said Kocot, a Democrat from Northampton. “I think any time you endeavor to draft a complex change to a law that hasn’t been changed since 1973, there are a lot of moving parts.”
Still, neither the original version nor the revised bill would do anything to address the law’s narrow scope.
Massachusetts is the only state in which the governor’s office, Legislature, and judiciary all claim to be exempt. And even when departments are covered, many documents are not because the law is riddled with exemptions.
Kocot and public records advocates say they hope the Legislature can address the exemptions after first dealing with fees and other issues in this bill.
Meanwhile, Secretary of State William F. Galvin faces a deadline this month to gather 64,750 signatures for his own ballot initiative to modestly strengthen the records law. However, both Galvin and open records advocates say they would prefer the Legislature act instead. If the Legislature acts, Galvin has said he plans to abandon his initiative.
But even if the House approves the bill Wednesday, the Senate is unlikely to act on it before members break from formal session this week. The Senate would probably take up the measure in January.