Massachusetts has some of the most ineffective and restrictive public information laws in the country. Data that is published online in most U.S. states is difficult to access in Massachusetts.
For example, Massachusetts is one of a handful of states in the nation that excludes legislators and the governor from most public information requests. And unlike most states, Massachusetts doesn’t pay a successful plaintiff’s legal fees when he seeks to challenge a denial of records, making the lengthy, expensive appeal process inaccessible for most people and news organizations.
Now, state politicians are seeking to update the public information law, which hasn’t been touched since 1973. Filed last year by State Rep. Peter Kocot, D-Northampton, the new law seeks to put some teeth behind public information requests that are sharp enough to encourage municipal and state employees to comply with records law. Because right now compliance is crap.
Kocot provided a good framework for change. Then the House got hold of the bill. Now it looks like the public records reform could do more harm than good for public access to information.
While providing legal fees to challengers is a tremendous step in the right direction — it is expected to encourage staff to comply with the law or risk paying up to $5,000 in legal fees to the successful challenger — under the House version of the bill, it is coming at the cost of timely access to data.
The House bill increases the proposed 15 days for a government agency to provide a response to a record’s request to 60-75-plus days to reply. To. Reply. The response letter isn’t the information the requester is seeking, it’s simply a note that says whether the government plans to grant the request, when, and how much it’s going to cost to produce the documents. Right now, a citizen is due a response in 10 days.
Kocot said the 15-day extended timeline was necessary to provide government staff with enough hours to accurately reply. I’m not crazy about this, but if overburdened government workers need an extra week to reply, I suppose that’s okay. The House, however, took this sentiment and blew it up to ridiculous proportions.
Allowing a loophole for the government to stall on every information request for more than two months would make the state public record law less effective than it is now. Delaying the release of information and charging exorbitant fees to access the data are the chief blockades to information access today.
Why wouldn’t a politician hem and haw for two months to delay release of potentially damaging financial reports and emails? They’re pulling the same anti-democracy tactics now with only 10 days! By extending the timeline, legislators would obliterate people’s ability to access the pertinent information — information they bought and paid for with their tax dollars — necessary to make informed decisions.
To prove this point, students from Northeastern University teamed up with the Boston Globe and WCVB-TV to conduct a public information request survey of each of Massachusetts’ 351 municipalities. Students made the same public information requests to each community: They wanted a list of municipal employee salaries and police use-of-force policies. More than half of the cities and towns — 58 percent — blew off the state’s public information laws and didn’t respond to requests within the required 10 days. Some communities flat out refused to provide the information, despite the salary info being widely available online at news sites including the Boston Herald. Others, like the city of Spencer, tried to charge more than $1,000 for the information.
Despite the ill conceived wait-time extension, the new law includes some excellent improvements. It would require government agencies and municipalities to designate an employee to answer public records requests. It would limit charges on copying fees to 5 cents per page and require all data be delivered in electronic format if available. Today, some departments charge up to $1 per copied page for a records request and bar citizens from scanning the data with their phones to avoid fees. The law would also set a cap on how much communities can charge for compiling data for requests. The current law states that information must be collected by the lowest-paid person able to do the work. So, right now, some requesters are getting bills for $50-an-hour collating services to access records. The new law would cap the charge at $25 per hour.
My favorite piece of the proposed legislation, though, is the standard it sets for appeals: All records are to be assumed public and it is up to the government to prove otherwise if they seek to block access. It puts the onus on government — where it should be.
Still, all these reforms don’t mean anything if people cannot get access to data in an expedient manner. If a politician is up to some skulduggery, people want to know — and deserve to know — about it right now, not two months from now.
Personally, I like Gov. Charlie Baker’s take on the public record request time frame, which he outlined in a memo about improving public records access to cabinet secretaries back in the summer of 2015. Baker has encouraged government employees to “improve communications with the public, secretariats and agencies … [and] notify a requester within five days if the records they are seeking may take more than 10 days and/or $10 to produce. Requests should be fulfilled in no more than eight weeks, with any extension being explained to a requester in writing.”
In February the Senate is taking up the proposed public information reforms. My hope is that legislators will see the damage an extended response time would have on cultivating an informed public and quash that part of the bill. And if there’s no appetite to do so, I have to question why the law is being “improved” in the first place.•
Palpini can be contacted at editor@valleyadvocate.com.
