This Is Hardly the Public Records Law Reform We Deserve
With all due respect, what is this?
The current public records law in Massachusetts is toothless, incompetent, antiquated—in a word, bad. The Center for Public Integrity gave the Bay State an “F” for its woeful open records access. Our State Police was this year’s recipient of the Golden Padlock Award, bestowed upon the most secretive public agency in the nation, for its masterful use of the broken law to ratchet up processing costs into the millions to discourage taxpaying citizens and journalists from accessing information that’s rightfully theirs. Last spring, the Supervisor of Public Records referred a case to the Attorney General’s office for enforcement for the first time in five years, but only after pressure from the press.
The public records reform bill passed unanimously by the House Wednesday allows anyone seeking information from public entities to collect up to $5,000 in attorney’s fees and civic damages at the discretion of a judge, from an agency that has acted in bad faith by dragging its feet. It also gives agencies and municipalities the option of extending their window for completing “complex” requests from the current 10 days to 60 and 75 days, respectively, plus even more time if they successfully petition the Supervisor of Public Records.
One of the bill’s two approved amendments creates a commission to explore the “constitutionality and practicality” of subjecting the Legislature, governor’s office, and judiciary branch to the public records law, from which they are currently exempt. (Rep. Jim Lyons’ proposal to outright remove the Legislature’s exemption was blocked by a 122-to-34 procedural move by House Democrats.) The other allows for the denial of requests if processing fees have gone unpaid.
To quote Sen. Bernie Sanders in the most recent Democratic debate: “Not good enough.”
The bill, as rewritten by the Ways and Means Committee, is a shell of its former, more promising self. As noted by the Globe‘s resident FOIA warrior Todd Wallack in a roundup of open records advocates’ disappointment, the bill that passed Wednesday is not nearly as strong as the version sponsored by Rep. Peter Kocot of Northampton, which guaranteed the compensation of legal fees if a requester took an agency to court to obtain records and won.
“This doesn’t fix the fundamental issues with the law,” Michael Morisy, founder of the open records site MuckRock, tells Boston magazine. “Records take forever to get back to people. There’s no mandatory awarding of attorney’s fees, so agencies really don’t care if people sue them because they know by the law there are no consequences even if they lose. And while this bill does offer judges to grant attorney’s fees, that’s entirely discretionary, and what we’ve seen is that when things are discretionary, when things are optional, typically they just don’t happen.”
“One thing that public records law in Massachusetts really needed was teeth, and this bill just doesn’t do that,” Morisy says.
Try if you can to wrap your head around this: 157 of your legislators were presented with a public records law whose most basic problem is the glacial pace of responses from agencies and municipalities within its current parameters, paired with a disturbing lack of consequences for noncompliance, and they voted to give said agencies and municipalities the option to petition the Supervisor of Public Records for even more time.
“We found that, on average, agencies take about 81 days to respond to requests, so the law that’s on the books was not being upheld, and agencies just didn’t care,” Morisy says. “Now, if you or I as frequently violated the law as these agencies did, if we didn’t pay our parking tickets for 81 days until after they were due, we’d get in trouble.”
So what happened here? At least two parties have their fingerprints all over this thing: the Massachusetts Municipal Association and the State Police. The former claimed in July that a retooled public records law demanding of towns something more resembling competence would foist “costly new unfunded mandates and burdens on cash-strapped cities and towns.” Two members of Massachusetts State Police—the same agency that slapped the Globe with a $42,750 fee when the paper requested a log of public records requests it received—reportedly held court with Speaker Robert DeLeo to express their concerns.
“As a former local official and someone who pays a lot of attention to municipal government, I don’t view anything in this bill as an unfunded mandate,” House Ways and Means Committee Vice Chairman Stephen Kulik told the State House News Service after the dust had settled. “Any public agency, including cities and towns, have responsibilities inherent to provide public access to the documents of what they do.”
“I think lawmakers were very receptive to the arguments that these towns are poorly equipped to handle public records requests, and I guess they just have such low expectations of those towns that they said, ‘Okay, failure is alright,'” Morisy said. “But I think what the Legislature forgets is, by and large, a strong public records law actually helps decrease costs. It helps root out corruption. It saves lives. I don’t understand how, with Spotlight coming out and shining a light on how poor public access laws held up investigations into abuse of children for years, how that reminder can come out this year and they decide that that kind of access doesn’t matter, that towns finding something a little bit burdensome or worrying about potential, theoretical expenses that 49 other states seem to be able to bear okay, how that’s worth more than children’s lives, children’s safety—I find that deplorable.”
Now, it’s not all bad. The version the House approved requires agencies and municipalities to designate a public records officer specifically tasked with processing these requests. And as Massachusetts Newspaper Publishers Association executive director Bob Ambrogi told SHNS, the discretionary attorney’s fees will embolden small newspapers should their pursuit of records point to the courts. A robust local press is invaluable.
(Rep. Kocot could not be immediately reached for comment.)
We’ll have to wait until next year for the Senate to take up this bill, but by the looks of it, our 1971 Ford Pinto of a public records law will remain one of our great shames as a commonwealth, planting us firmly in the back of the pack.
There’s something very wrong here when Massachusetts should aspire to be more like Florida, and weather has nothing to do with it.