Compromise on public information reform, but at what cost?

The legislative battle to update the Massachusetts public records law is over, and despite what you may have heard, the public lost. The Legislature listened to complaints about and criticism of our records law, and they boldly acted—to ensure that our state will remain one of the worst in the nation when it comes to the public’s right to access government records.

Under the current records law, all agencies are supposed to provide records within 10 calendar days of receiving a request. However, agencies rarely even provide a response to requests within this window. A massive audit by Northeastern University journalism students and the Boston Globe recently found that 58 percent of the Commonwealth’s 351 municipalities did not respond to requests within 10 days. The primary reason agencies treat the current law as a joke is that Secretary of the Commonwealth William Galvin and Attorney General Maura Healey don’t enforce the law. Galvin’s office has only escalated one violation of the law to the AGO for enforcement in the past several years. The AGO could act on its own, but refuses to do so.

The public records law has not been substantially updated since the ‘70s, and in that time the process of storing and reproducing records has become much more efficient. But instead of improving enforcement, the Legislature decided to allow municipal agencies to grant themselves up to 25 business days to produce records, which is over a month (this month, for example, has only 22 business days). And it allowed state agencies to give themselves up to 15 business days. All an agency needs to do to get extra time is to claim that it’s too busy with its other responsibilities to provide the records.

But if that wasn’t enough, municipal and state agencies can request an extension from Galvin’s office. Municipal agencies can get up to 30 extra business days, and state agencies can get up to 20 extra business days. Once you factor in both extensions and non-business days, municipalities can take a total of up to about two-and-a-half months to provide records, while state agencies can take up to about a month and a half. Any accurate media should issue a disclaimer that under the new law they cannot really report on current municipal matters, only on what happened a few months prior.

Gavi Wolfe, legislative counsel for the American Civil Liberties Union of Massachusetts, told us he believes this timeline is actually a good thing because the old one wasn’t taken seriously. “[I]t’s widely understood that the 10-day deadline under [the] current law is a fiction. The new statute gives agencies some more flexibility on paper, but it also allows requesters to hold their feet to the fire,” he said. However, there’s no reason to believe the new timeline is any likelier to be enforced by Galvin and Healey than the current one. Then again, the new timeline is so slow that maybe agencies will follow it by accident.

To make things worse, the new law allows agencies to petition Galvin’s office to be relieved of their duty to provide records if a request is “part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass”—and none of these terms are defined within the law. In the past, agencies have always been required to respond to records requests.

The update also allows agencies to stop processing requests from a requester who owes them money from a previous request. But this makes no sense because agencies are supposed to collect fees before providing records. This provision will lead to confusion, and some agencies may interpret it to mean they can stop processing requests from people who asked for records but opted not to pay the fee because they couldn’t afford it or thought it was excessive.

The new law puts some limits on the fees agencies can charge for providing records, which is a positive step. Agencies will only be able to charge $25 an hour for personnel time, cannot charge for the first few hours of work unless they’re part of a municipality with a population of 20,000 or less, and cannot charge for redactions unless they’re mandated by law (as opposed to allowable by law). However, these limits can be overridden by Galvin’s office on the basis that a “request could not have been prudently completed” without charging more. And Galvin’s office has already shown that it considers exorbitant fees, such as a town charging $210 per hour to redact records, to be “reasonable.” Plus, the new law will allow agencies to enter contracts with vendors to handle government records. The fees associated for that work can be passed forward to the requester and we fear it will be used to justify exceeding the $25 per hour cap.

One reform we enthusiastically support is the requirement that agencies must waive all fees when they fail to respond to a request within 10 business days of receiving it. Unfortunately, the final version of the fee-waiving requirement was watered down and no longer requires agencies to waive fees if they miss the deadline to provide the records, like when Boston police robbed Evan Anderson by collecting a hefty fee, then never provided the records. We’re concerned that Galvin’s office will render the fee-waiving provision useless by a lack of enforcement—especially since his office testified against including it in the law.

The best hope for increasing records access was a provision that would have required agencies to pay the attorney’s fees of anyone who successfully sues them for records in most cases. However, this provision was diluted so that attorney’s fees are up to the discretion of judges. The point of mandating the fees was to increase the incentive for filing lawsuits, but if recouping the fees is a gamble, then the added incentive for suing is negligible.

Despite all the problems with the new law, it has received quite a bit of praise from the media and nonprofits like Common Cause and the ACLU. Common Cause and the ACLU actually encouraged their members to contact Governor Charlie Baker to ask him to sign the bill, even though it was passed unanimously in both the House and Senate and was sure to become law anyway. After Baker signed it, both groups declared “Victory!,” and the ACLU is already using it to drum up donations.

When we asked the ACLU about the issues with the new law, Gavi Wolfe responded, saying, “The legislative process, by definition, involves compromise, but we ended up with a bill that represents real, concrete, meaningful change for the better.” We don’t agree with this assessment, but at least we can agree on one thing: “This cannot be the end of the line for our advocacy for open government and public records reform. There’s more to do in the future, for sure.”

“Broken Records” is a biweekly column produced in partnership between the Boston Institute for Nonprofit Journalism, DigBoston, and the Bay State Examiner. Follow BINJ on Twitter @BINJreports for upcoming installments of Maya and Andrew’s ongoing reporting on public information.