BROKEN RECORDS: HOW TO EXPOSE BAD GOVERNMENT IN 2017
For the first time in decades, the Commonwealth has a new public records law. Here’s what you need to know…
BY ANDREW QUEMERE
Happy New Year! For the first time since the ’70s, Massachusetts has a new public records law. It also has a new set of regulations and a new supervisor of public records. These changes will dramatically affect how journalists, lawyers, activists, and other interested residents of the Commonwealth access public information. The new law is incredibly flawed, just like the old one — but thankfully, it’s not all bad news. Here’s what you need to know…
MAKING A REQUEST
Agencies must now appoint records access officers to facilitate responses to requests, so requests should be directed to these officers. Be sure to check an agency’s website for contact information if you plan to make a request. As with the old records law, requests for records can be made in writing (through email, mail, or fax) or verbally (as long as they’re made in person — government agencies aren’t required to accept requests made by telephone). It’s still generally a good idea to make requests in writing because you can only appeal responses to written requests.
RESPONSE TIMES
Under the previous public records law, government agencies were supposed to comply with records requests within 10 calendar days, but the new law gives them 10 business days — and they can take even longer still without running afoul of the law. Municipal agencies can grant themselves up to 25 business days to produce records (there are five business days in a typical week, so that’s more than a month), and state agencies can give themselves up to 15 business days (about three weeks). All an agency needs to do to get this extra time is to claim that it’s too busy with its other responsibilities to provide the records. Agencies can also request one extension from the secretary of the Commonwealth’s office. Municipal agencies can get up to a 30-business-day extension, and state agencies can get up to 20.
Once you factor in extensions and non-business days, municipalities can take a total of about two and a half months to provide records, while state agencies can take up to about a month and a half. Even if an agency takes longer than 10 business days to provide records, it must still provide a response within 10 business days.
FEES
The new law puts limits on how much agencies can charge for records. Now, 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). Unfortunately, state and municipal agencies can petition the secretary’s office to lift the limits on segregation time on a case-by-case basis, and municipal agencies can petition the secretary’s office to lift the hourly rate cap. Requesters should take note that the new law doesn’t allow agencies to charge fees if they do not provide responses to requests within 10 business days, so be sure to challenge any fees you’re assessed if an agency doesn’t respond on time.
APPEALS
Under both the old and new records law, the supervisor of records — an appointee of the secretary of the Commonwealth — is responsible for ruling on appeals from people who have been denied access to public records. Requesters file hundreds of these appeals every year; in fact, using the appeals process is a fairly routine part of requesting records because of the absurd frequency with which government agencies break the law. In 2015, a massive audit by Northeastern University journalism students, WCVB, and the Boston Globe found that 58 percent — the majority — of the Commonwealth’s 351 municipalities didn’t even meet the low bar of responding to records requests on time.
In the past, the secretary’s office has regularly dragged the appeals process on for months, but the new law requires it to rule on appeals within 10 days. The new law also states that the secretary’s office must rule on all appeals. However, requesters must now provide a copy of their appeal to the record access officer for the agency or the secretary’s office will not consider it. Regulations enacted by the secretary’s office also state that it may choose to not issue a ruling if, “among other reasons,” “the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation,” the request is “designed or intended to harass, intimidate, or assist in the commission of a crime,” or the “request is made solely for a commercial purpose.” The provision about requests that are “designed or intended to harass, intimidate, or assist in the commission of a crime” is troubling because none of these terms are defined in the law or regulations. Only time will tell what this means for requesters.
NEW SUPERVISOR
Shawn Williams, the former state supervisor of records, resigned in late December, just before the new law was set to take effect. Transparency advocates will not miss Williams, whose vexing rulings earned him a nomination for a Golden Padlock “Award” from the group Investigative Reporters and Editors last year. In one particularly terrible ruling, Williams held that police departments have discretion to withhold arrest reports from the public, a decision he made after Boston Globe reporter Todd Wallack requested information about police officers charged with drunk driving. The Globe has fought Williams’ decisions in court and beaten them five times and is currently suing to overturn the decision about police reports. In another bizarre ruling, Williams allowed Quincy police to withhold a report from a woman because she was the subject of the report and identifying her to herself would somehow jeopardize her willingness to cooperate with police in the future (if that didn’t make any sense to you, don’t worry — it just means you’re sane).
Williams was replaced by Rebecca Murray, another lawyer with the secretary’s office. Murray was assistant legal counsel in the Elections Division of the secretary’s office and also worked with the legislative committee that drafted the new public records law, according to Brian McNiff, spokesman for the secretary’s office. Only time will tell if Murray makes a better watchdog than Williams. Open government advocates will need to keep a close eye on how she handles appeals, requests from agencies for extensions, and requests from agencies to lift the caps on fees.
Unfortunately, Williams has moved on to the city of Boston, where he will serve as the city’s first director of public records, making him responsible for coordinating all the city’s responses to records requests. As the Globe reports, Williams continued to make decisions on appeals related to the city while interviewing for the job, raising the possibility that he violated state ethics rules.
ENFORCEMENT
When an agency refuses to comply with an order from the supervisor of records, the supervisor is supposed to refer the matter to the attorney general’s office, which has the power to sue agencies and file criminal charges against public officials. Unfortunately, both the old and new records law give the supervisor discretion over whether to make these referrals. The system has proved to be hugely dysfunctional. In the past, the AGO has rarely agreed with the secretary’s office on how to interpret the law, and the disagreements have led to friction. In fact, the secretary’s office stopped referring orders altogether for five years, only resuming in 2015 after Maura Healey took office as the attorney general. The secretary’s office only referred one order to the AGO in 2015; last year, it referred four. Legislators missed a big opportunity to improve the law when they chose to not mandate referrals, but hopefully the personnel change at the secretary’s office will lead to a better working relationship with the AGO.
LAWSUITS
While requesters still can’t count on the secretary’s office and AGO to enforce the law, they can attempt to enforce it themselves by taking agencies to court. The new law will finally allow people who successfully sue for access to public records to recover their legal fees, which can be quite expensive. However, the law gives judges discretion over whether to award the fees. One reason judges may deny legal fees is if the secretary’s office has ruled against the requester, so requesters with deep pockets may want to skip the appeals process entirely. Seeing how the first few lawsuits play out will be the most exciting aspect of the new law taking effect because turning to the courts is the only way the public can bypass the secretary’s office and AGO.
It’ll be some time before we know if the new records law — touted by the politicians who passed it as a major reform — is really an improvement on the old one. The only way to find out is to put it to the test. So what are you waiting for? Go make some records requests!
Broken Records is produced in partnership with the Boston Institute for Nonprofit Journalism. Follow BINJ @BINJreports and @BrokenRecords_MA for our ongoing reporting on public information.
