Few things, if any, are more fundamental to the notion of a democratic form of government than the people’s right to know what has been done on their behalf.
It is with this in mind that we endorse the House and Senate’s recent compromise bill that overhauls public records access for the first time since 1973.
According to State House News Service, the bill (H.4333), “[i]n addition to requiring state agencies and cities and towns to designate records officers to field requests, the proposal requires public agencies to provide requested public records within 10 business days, while allowing for extensions beyond that deadline capped at five business days from the original request for a state agency and 15 for a municipality. The bill further caps the length of appeals if records are denied and requesters appeal to the Secretary of State.”
It also “encourages public agencies to make electronic public records more readily available to requesters when records are already in electronic formats, and limits the costs public entities may charge for making copies or for employee time spent assembling records.”
The compromise bill that came out of conference committee last week passed the House (154-0) and Senate (40-0) unanimously and is headed to Gov. Charlie Baker’s desk.
Massachusetts has for years had the dubious dual reputation of having some of the weakest public records laws in the nation and being among the most lax in upholding those laws.
Consider, in 2015, The Center for Public Integrity gave the commonwealth a D+ grade in its State Integrity Investigation. [Editor’s note: While hardly impressive, this was 11th best nationally.] Included in that score was an F grade in Public Access to Information. Among several failing states, Massachusetts came in 40th in that critical category.
[Editor’s note: One may — or may not — be surprised to learn the Bay State ranked first in Political Financing, fourth in Procurement and sixth in Electoral Oversight.]
In not following the spirit of the existing public records law, the state and municipalities have generally chosen three tactics: ignoring the request, delaying a response and being liberal with “reasonable fees” for producing records.
A Boston Globe, WCVB-TV, Northeastern University report in December found that “[o]ut of 351 cities and towns, 204, or 58 percent, failed to provide a timely response to one or both requests. Eighty-three communities, or 24 percent, never responded at all to one of the requests during the 40-day test.”
The same report documented that only after repeated attempts were records given.
A seeming willingness to release information to the public can be disingenuous when it comes with a hefty price tag.
A 2009 article on Boston.com detailed the efforts of a blogger in Somerville who requested “information about parking tickets and the city’s responses to citizen complaints.”
Somerville responded that the information would cost the blogger more than $200,000.
In addition, according the a guest column in Commonwealth Magazine, “To run up costs, agencies frequently provide records in paper or other non-searchable form, even when digital records, which are cheaper and more useful, already exist. This includes printing records obviously created in electronic form, such as spreadsheets or emails, and charging the requester for the printing costs.”
The bill awaiting Baker’s signature takes important steps to rein in some of the most common types of records access abuse. Most importantly, it adds teeth to public records access by permitting courts to award attorney’s fees and costs in any case, “in which the requester obtains relief through a judicial order, consent decree, or the provision of requested documents after the filing of a complaint.”
The law is not perfect. The commonwealth still has plenty of exemptions, 21 by this count, and we have little doubt there will continue to be abuses of both the spirit and letter of the law.
But this law should immediately do two things.
It should be a reminder that for all the talk of an open and transparent government, the state and its cities and towns have generally operated far differently than their leaders proclaim.
More importantly, though, it should signal that change is coming.