Image by Tak Toyoshima
Massachusetts has some of the weakest government transparency laws in the country, so our state lawmakers decided to make them even worse.
Public records laws are a dry, technical subject that most people don’t have the patience for, but they’re important for journalists, lawyers, and activists who use public records to expose police brutality, information about deaths of children linked to abuse and neglect, and dirt on the now-defunct Boston 2024 Olympics bid, just to give a few recent examples.
Under the current public records law, anyone can request records from any state or local government agency (although the governor’s office, Legislature, and courts are exempt). Agencies are then required to comply with records requests in 10 days, but often stonewall for months because they face no consequences. Agencies also obstruct requests by citing exemptions to the law—relevant or otherwise—or by charging exorbitant fees for requests. The supervisor of records, an official appointed by the secretary of the Commonwealth, can order agencies to comply with records requests, but agencies often ignore those orders. To get orders enforced, the supervisor must refer cases to the state attorney general, but almost never does so. The AG then has the option of seeking criminal charges against public officials who violate the law, but has never gotten around to it even once.
This past year, there has been a push by state lawmakers to update the law, which hasn’t been significantly altered since 1973. A bill filed in the Legislature earlier this year would have improved the law in a number of ways, but it was radically changed and approved by the House last week. It appears that the bill has been sabotaged by the Massachusetts Municipal Association, a private special interest group made up of local government officials, which has been lobbying state lawmakers and leading a scare campaign against the old bill. The new bill contains a few improvements over the current law, such as putting more limits on the fees agencies can charge for records, but otherwise reads like it was written by the MMA itself (virtually every change advocated by MMA executive director Geoffrey Beckwith was implemented). Most of the positive parts of the old bill were watered down or stripped out completely, and it contains a number of new provisions that will make it substantially harder to get public records.
“I thought [the old bill] was a very strong bill that would’ve actually brought Massachusetts up to where other states are,” says Michael Morisy, founder of MuckRock, a Boston-based website that assists users with making information requests all around the country. “[The revised] bill takes what was already a low bar and in some ways sets it even lower … [It] doesn’t really do anything to solve the core problems with what’s broken in Massachusetts public records law.”
The bill still needs to go before the Senate, which will likely change it yet again, so there’s still hope that it will be fixed. But after seeing how the bill was devastated by the House, the future is unpredictable. There’s too much wrong with this bill to summarize in one article, but here are some of the most glaring problems with the current language…
The bill would give agencies months to comply with requests
The revised bill would give state agencies up to 60 days and local agencies up to 75 days to comply with records requests. Furthermore, agencies would have the option to apply for an extension with the supervisor of records within 45 days of receiving a request. They would only be allowed one extension, but there would be no limit on the length, allowing agencies to delay requests for months or even years. The bill does not include any language that would allow requesters to challenge an extension to the supervisor or a requirement that requesters be notified when an agency seeks or receives an extension.
That’s “crazy,” Morisy says. In theory, these extended time periods would only apply to “complex” requests, but they will likely be abused. “I think anybody who’s familiar with how agencies work around here, they’re just going to say every request is complex,” Morisy adds.
MuckRock has submitted hundreds of requests to state agencies in Massachusetts, and has found that they take an average of 81 days to comply despite the current law. That figure doesn’t include local agencies, many of which also take much longer than 10 days. Boston agencies, for example, take an average of 74 days. Giving agencies the discretion to take two months or more, and the ability to file for extensions, would only make the problem worse.
Morisy says that some requests legitimately take more than 10 days to comply with, but that it shouldn’t be up to the agency’s discretion to decide. He says a better solution would be to require agencies to justify and seek approval from the supervisor of records for any amount of time beyond 10 days.
The bill would let records law breakers off the hook
The bill as it was originally written would have made the law easier to enforce by encouraging people who were wrongfully denied records to sue agencies. Under that bill, judges would have been required to award attorney’s fees to requesters who successfully sued agencies. Under the new bill, judges would have complete discretion over whether to award the fees, and the bill contains no guidelines for making these decisions.
Joel Fleming, a Boston attorney who is familiar with the system, opined on Twitter that he think judges would be “extremely hesitant” to award fees under the new bill since the money would be coming from taxpayers. That means attorneys would be unlikely to accept public records cases unless they were paid up front or working for free, which is already the status quo. Some attorneys might agree to take cases on a contingency basis, Fleming says, but it wouldn’t make any financial sense for them to do so. His question: “[W]hy would I invest time in a case, where I have say a 20% chance of getting paid my hourly rate and 80% of $0?”
To make matters worse, the new bill would make it almost impossible to actually file a public records lawsuit. Under the current law, there is no statute of limitations for lawsuits. With the change, requesters would, in most cases, only have 30 days to file a lawsuit.
“If you have to find a pro bono attorney, that’s a real race,” says Morisy. “I know that in most of the cases where we’ve ended up getting legal counsel, it’s taken a lot more time to prepare.”
Todd Wallack, a reporter and public records expert for the Boston Globe, noted that even though the Commonwealth’s largest newspaper has “terrific” outside counsel on retainer, even they find it “difficult to make [the] decision to sue and prepare paperwork in 30 days.”
And remember, 30 days is less than the amount of time government agencies have to comply with requests under the bill. In fact, it’s less than the 45-day period they would have to file for an extension.
The revised bill also fails to address the lack of enforcement by the supervisor of records and attorney general. The old bill would have required the supervisor to refer orders to the attorney general when agencies refuse to comply, and that the attorney general enforce them. However, the language requiring referrals was removed.
The bill would allow agencies to force requesters to pay private vendors for records
The revised public records bill puts more limits on how much agencies can charge for fulfilling records requests. It would not allow agencies to charge for the first few hours of personnel time, and it would cap the hourly rate for preparing records at $25 for state agencies (local agencies could still charge more per hour). However, this provision includes a significant loophole: it allows an agency to hire private vendors to process records requests if said agency “lacks the qualified staffing or technological capabilities” to do so. Agencies could require requesters to sign “an enforceable written agreement” to cover the costs of hiring a vendor, or else refuse to turn over the records.
According to Morisy, some agencies are already using private vendors, often pricey information technology companies who are hired to extract digital records from databases. “[It’s] another tool to discourage public records requests,” he said. “Agencies choose vendors that are expensive … That’s pathetic. Any other entity that was operating would naturally choose the most efficient, most open way to maintain and store data. It’s just common sense.”
The new bill would codify the right of agencies to hire vendors, and put very few limits on their ability to do so. The bill vaguely claims that vendor fees must be “reasonable,” but puts no actual cap on the amount they can charge. It would create a perverse incentive for agencies to purchase databases that are difficult to export data from in order to keep information out of sight.
In the case of electronic records, Morisy says a better idea would be to require agencies to only purchase databases where “the data is easily exportable in a commonly readable, accessible format.”
The bill does require that when agencies install a new electronic recordkeeping system, they must try to “ensure, where feasible, that the system or database is capable of providing data in a commonly available electronic format.” However, the bill does not define what “feasible” means or spell out any penalties for failing to comply with this provision.
Where does that leave us?
Senators will begin discussing the public records bill this week, and will begin revising it again, although they will not vote on it until next year. On a positive note, I spoke by phone with Senator James Eldridge, one of the lawmakers who has been behind the push to update the law, and he expressed concern about many of the problems discussed herein.
“Massachusetts needs the strongest public records bill in the country, and I do think the House bill falls short,” Eldridge says, adding that he took issue with the extreme amounts of time the bill would give agencies, the lack of mandatory attorney’s fees in lawsuits, and the lack of any “strong enforcement” provisions.
He adds: “This is the public’s information … [It’s] paid for by taxpayers. It’s not the property of elected officials or state employees … It’s absolutely critical if we’re serious about having a robust democracy in Massachusetts that information is easily available to the public so they understand why elected officials or bureaucrats are making decisions and what may or may not have influenced them.”
There’s hope that folks in the Senate—Eldridge in particular—will help repair the bill and get an improved version signed into law. But if they can’t significantly improve the bill, it shouldn’t be passed at all. This is the 21st Century, and decades of technological innovation have made the process of storing, retrieving, and copying records more efficient—the last thing we need is a law that makes it harder to obtain public records than it was in the ‘70s.
As Morisy put it while reacting to the House bill, “It’s sad that the Legislature has such low regard for the agencies and departments in Massachusetts that they just think they’re the worst in the country, and they’re okay with that. I think this is an amazing state, I think there’s amazingly talented people in government in Massachusetts, and I think we should respect them enough to ask that they be good at their job.”
Let’s hope our senators agree.