The Massachusetts House of Representatives unanimously passed a bill Wednesday to overhaul the state public records law for the first time in more than four decades. Most public records advocates say the bill is an improvement over the current law, but were disappointed the Legislature didn't go further.
What is the state of the current law?
Critics say the current law is one of the weakest public records laws in the country. Government agencies routinely take months to respond to requests, refuse to release documents that are public most everywhere else, or demand staggering sums for records. The State Police, for example, once billed an attorney $2.7 million for a copy of a database. The state ranked next to last in the time it took state agencies to respond to requests filed through Muckrock.com, a Boston news startup that processes public records requests for users across the country. And a survey by the Center for Public Integrity this month ranked Massachusetts far below most states, including Mississippi and Arkansas.
What will the bill do?
The bill (H.3858) contains a number of provisions designed to help make it easier for citizens to get information. Cities, towns, and state agencies would have to publicly designate someone to handle and track requests. It gives the attorney general more power to intervene in public records suits and seek penalties. It would require agencies to consider public records requests when they upgrade their computer systems. And it enshrines some existing regulations into statute (such as a requirement that agencies provide electronic records in electronic form if requested).
Will it speed up the requests?
That's unclear. On paper, the bill actually gives officials more time. The current law requires agencies to comply within 10 days, though many agencies routinely ignore that deadline. By contrast, the new bill gives agencies 10 business days for the initial response and up to 60 days (for state agencies) or 75 days (for municipalities) to comply with more complex requests. If agencies need additional time beyond that, they will be able to petition the Supervisor of Records (an official in the Secretary of State's office) for a further extension.
Will it reduce fees?
Somewhat. The law will reduce the cost of black-and-white copies to 5 cents per page, down from 20 cents per page (for a traditional copy) and 50 cents (for a computer printout) under the current regulations. It also bars agencies from charging for small amounts of staff time (the first two hours for cities and towns and the first four hours for state agencies). And it will ban state agencies from charging more than $25 per hour to locate and review records (similar to a limit the administration of Governor Charlie Baker already enacted on its own last summer).
But the bill contains no limit on the hourly rate local officials charge, so long as they claim they are using the lowest-paid person available. For instance, the state Supervisor of Records ruled earlier this month that the Town of Framingham could charge $210 per hour to review and redact legal bills and the legislation would not change that. And the bill contains no limit on the number of hours officials can charge to locate, review and redact documents. For instance, the State Police initially justified the $2.7 million estimate partly by claiming it would require 41,218 hours for "review and redaction costs" — something that is not barred by the legislation. Even if the state can only charge $25 an hour, that still adds up to more than $1 million in labor costs alone. The bill would continue to allow citizens to appeal fee estimates to the Supervisor of Records, though that route is not always successful. It would also for the first time bar citizens from appealing fees first to the courts, except in cases where the fee estimate is at least $25,000.
Does the bill contain any penalties?
Agencies could be ordered to pay $1,000 to $5000 in fines or damages if a court rules officials acted maliciously. The bill would also allow citizens to recover their legal fees if they successfully sue to obtain records, though it would be up to the discretion of a judge. Massachusetts is currently one of only three states where citizens cannot currently recover their legal fees if they win a public records suit. However, the bill would do nothing to speed up the legal process. Unlike some other states, public records suits do not receive any priority in Massachusetts over some other types of cases — even though they usually don't require discovery or a trial — so they often take years. For instance, it took three years in court for the Globe to obtain the names of people and companies that negotiated secret legal settlements with the state.
Will the bill expand the scope of the law?
No. Even if the bill passes, Massachusetts will remain the only state in the country where the governor's office, judiciary and Legislature are all exempt from the law. And even when departments are clearly covered by the statute, many of their records are not because the law contains a litany of exemptions for everything from personnel files to investigative records. Several state and local police departments have come under fire for using the exemptions to justify withholding the names and pictures of officers caught drunk driving. The Globe filed a lawsuit in May to try to make the records public, but the lawsuit is still pending and the bill does nothing to clarify the situation. The House did approve an amendment to the bill that would create a commission to study whether to extend the law to cover the governor's office, judiciary and Legislature, but the commission is not charged with studying other exemptions in the law.
Where does the bill stand?
The Senate plans to take up the bill early next year and is widely expected to approve the bill in some form. Senate President Stanley C. Rosenberg and a number of senators have publicly championed the legislation. Public records advocates plan to push for changes to strengthen the law, but could face opposition from local and state government officials. If the Senate approves a different version of the bill than the House, the two chambers would have to work out the differences in a conference committee and then both chambers would have to ratify the bill again before sending it to the governor's desk. Governor Charlie Baker has publicly said the law needs to be improved, but he has not taken any position on the pending bill.