Most localities fail test on state records law
It was probably the largest test ever conducted of how cities and towns in the state respond to requests for government records from average citizens.
And Massachusetts failed.
A solid majority — 58% — of the Commonwealth's 351 municipalities did not respond within the 10-day limit set by state law when they received a written request for two records that are almost universally considered to be public.
Nearly a quarter took more than 40 days or never responded at all to one of the requests sent by a Northeastern University journalism class in partnership with the Globe and WCVB-TV.
And more than a dozen outright refused to provide the documents — reports showing how much municipal workers earned last year and "use of force" policies describing when police officers can use their weapons — for legally dubious reasons, such as protecting the privacy of public employees.
Others created obstacles to obtaining the information, such as peppering the students with questions about why they wanted the records — which is frowned on by the secretary of state — or requiring students to pick up documents in person — which violates state regulations. Two dozen communities asked for more than $100 for the payroll report, including Spencer, which demanded $1,440.
"It's abysmal," said Pam Wilmot, executive director of Common Cause Massachusetts. "The data makes it clear that many cities and towns really do not follow the law."
The poor test results suggest that Massachusetts' famously weak public records law is matched by equally weak compliance — many government workers seem to take the 10-day legal deadlines for responding as little more than a suggestion rather than a requirement.
And why wouldn't they? Public officials in Massachusetts face no real penalties for withholding documents or missing deadlines. The attorney general's office can't recall a single case in which it has ever prosecuted anyone for violations since the law was passed in 1973.
Lawmakers are debating legislation to overhaul the statute for the first time in four decades, but it's unclear how far they will go to strengthen the law because of objections from some government officials and their lobbyists.
House legislators scaled back efforts to make public records more accessible after the Massachusetts Municipal Association complained that the bill would impose costly new responsibilities on cities and towns.
State Senator Jason Lewis, who sponsored an earlier version of the public records bill, said he was disappointed, but not surprised to hear about the students' experiences. "One of the main issues with the current public records law is that it lacks adequate enforcement," said the Winchester Democrat.
Geoff Beckwith, executive director of the Massachusetts Municipal Association, declined to comment on the findings by the Northeastern students. But Beckwith said it is often difficult for local officials to respond to requests within the current deadline because they have limited staff.
"Cities and towns do the best they can with the resources that they have," said Beckwith, who supports a measure in the House bill to give officials more time to respond.
The Northeastern audit — conducted by a journalism class taught by Mike Beaudet, an investigative reporter for WCVB-TV (Channel 5) — showed just how difficult it can be to obtain information promptly under the current law.
The class mailed requests to the city or town clerk and police chief for all 351 cities and towns on Oct. 20. In most cases, the students followed up with an e-mail in early November if they didn't receive an acknowledgment that the request had been received.
To simulate how cities and towns would respond to a request from the average citizen, they didn't say why they were asking for the documents or mention their affiliation with Northeastern. Instead, they rented a post office box and set up a generic e-mail account to track the responses. For consistency, they used the same student's name — Ben Thompson — on all the letters.
Under state law, agencies are required to send a meaningful response — such as providing the records, a fee estimate, or a denial — within 10 calendar days. But most cities and towns missed the deadline for one or both requests and some never responded at all.
Quincy spokesman Chris Walker said a clerk mistakenly forwarded the Northeastern request for its payroll to the wrong person. Walker promptly provided the information when the Globe asked why the city never responded.
Other officials said they didn't recall seeing the requests or simply forgot to reply.
"It must have gotten lost in the mail — literally," acting Danvers Police Chief Patrick Ambrose told the Globe. Ambrose later confirmed that the agency received the follow-up e-mail and belatedly sent the students a copy of the policy.
But in more than a dozen other cases, agencies flatly refused the students' requests.
Nine police departments, including those in Revere and Shirley, argued that releasing the use of force policies would impede the department's operations or jeopardize public safety by allowing criminals to learn how they handle incidents.
"I believe that it could present an officer safety issue if the general public knew what type of force an officer would respond with," Shirley Police Chief Thomas J. Goulden II told the Globe.
That's despite the fact that other cities, including Boston and Cambridge, post their policies online. And the Massachusetts Chiefs of Police Association issued an advisory last month saying it believes the policies are required to be released under state law.
"There really is no excuse for agencies to hide use of force policies," said Carol Rose, executive director of the American Civil Liberties Union of Massachusetts. "It doesn't undermine public safety, it enhances public safety."
Indeed, almost all the departments reversed their decision to withhold the policies after a reporter asked them about it, including those in Beverly, Leominster, Newburyport, and Revere.
Some towns also denied access to reports showing how much their workers were paid last year, even though the information has long been considered public in Massachusetts.
Goshen said it was willing to release job titles, but not names of individual workers. "Given current conditions concerning identity and information theft, the town has a policy of not releasing the name of individual employees," the town treasurer, Allan Kidston, wrote the students.
And the town of Dalton rejected the request altogether, saying the report contained Social Security numbers and other confidential information. However, the law generally requires agencies to disclose the public portions of documents, such as names and salaries. "An individual's public employment salary is a public record," according to the secretary of state's office.
Alaine Boucher, the accountant in Spencer, justified her demand for a $1,440 fee for payroll records by claiming it would take her 40 hours to compile the data on 237 workers by hand.
Boucher later told the Globe she thought she could create the report for $900 by culling the data from tax forms. "Our payroll is not computerized," Boucher said. She acknowledged the town's payroll vendor has the electronic data, but she declined to ask the company for help in producing the report.
Police departments typically charged less for the use of force policies, but some also cited dubious fees.
And Quincy Police Captain John Dougan first quoted a price of $65.43 for a 14-page policy: 50 cents a page plus his hourly salary of $58.43 "It doesn't take that long, but we have an hour minimum," he explained.
Still, after a Globe reporter questioned the fees, Dougan agreed to e-mail the policy to the student for free and said the city will consider posting the policy on its website.
But even some agencies that didn’t charge large fees made it difficult in other ways for the students to obtain the documents, such as refusing to mail or e-mail the documents. Holbrook, for instance, said the student would have to pick up the town’s payroll report in person during office hours and display a “valid ID with picture.”
"We just wanted to make sure the person who requested the information had a legitimate use for it," said Holbrook Treasurer Paul DiGirolamo. And a number of towns declined to provide the records in electronic form — even when it was clear the data was stored on a computer — instead asking students to pay extra for printouts and making the data harder to analyze.
Some towns turned down the requests for other questionable reasons. Aquinnah returned the letter because the student's name was typed but not signed. And Hingham police said the students didn't use the department's own form. But under state rules, any clear written or verbal request for records is supposed to be valid.
Several of the students said they were surprised so many cities and towns refused to provide the documents or demanded to know why they wanted them.
Emily Turner, a graduate student, said: "This is supposed to be public information, so it shouldn't be an investigation into why we are looking for the information."