FOIA-BLES Critical Mass records reform bill takes two steps forward and one step back

Part of our "Broken Records" series written with BINJ and DigBoston

BY ANDREW QUEMERE AND MAYA SHAFFER

 

Last week, the Massachusetts state Senate unveiled their version of a bill to update the Commonwealth’s decrepit public records law, which journalists rely on to cover everything from budgets to government corruption. The bill offers some hope to reporters and transparency advocates who have been pushing for positive reform, but not much.

The Massachusetts public records law is considered one of the worst in the country, and hasn't been meaningfully updated since the 1970s. Last year, a media uproar pushed the topic onto center stage, and now as a result an update seems highly probable. In November, the House passed their own public records bill, which some observers—us included—said would actually make it harder to access public records. In contrast, there seems to be a consensus that the Senate bill would be an improvement over what we have now.

But the fight continues. The Senate will debate their bill this week and vote on the measure soon after. After the bill clears the Senate, a conference committee made up of three senators and three representatives will iron out the significant differences between the two versions and advance a final bill to a vote. If passed, the bill will still need the governor’s approval to become a law.

The Senate's bill still has a number of flaws, and its positive aspects could be stripped or watered down by amendments or the committee process. As watchdogs, we decided to focus our microscope on the best and worst changes in hope that legislators take note.

 

GOOD IDEA: Mandatory attorney’s fees

As pointed out in our last column, the biggest problem with the public records law is the lack of enforcement. Consequently, the most important aspect of the update will be how it affects the public’s ability to enforce the law itself by suing government agencies that refuse to turn over records. Requesters can already sue agencies, but that’s not realistic for most people. Unlike 47 other states, litigants are never awarded attorney’s fees—even when a judge sides with them—and hiring an attorney for one of these suits can cost tens of thousands of dollars or more.

The House bill would make the pursuit of lawsuits practically impossible by setting a 30-day window to file, and while the measure does authorize the payment of attorney’s fees, awarding them would be left to a judge’s discretion. The Senate bill, however, would mandate the recovery of legal fees in many cases, making it a huge improvement over the current law and the House proposal.

 

BAD IDEA: Exceptions to the rule

The Senate bill, unfortunately, still includes a number of exceptions to the mandatory attorney’s fees rule. They are as follows: If the supervisor of records previously ruled in favor of the agency; if the agency can point to a similar case where the supervisor had ruled for an agency; if the agency can point to a similar case where the courts had ruled for an agency; if the request was made to “intimidate or harass”; or “if the request was not in the public interest and made for a private or commercial interest unrelated to dissemination of information to the public about actual or alleged government activity.”

Most concerning are the caveats related to the supervisor of records. The supervisor's questionable rulings are part of what led to the current push to update the law, so allowing agencies to hide behind them is a serious flaw that would make the cases where lawsuits are most needed—cases where the supervisor has made an error—less likely to be litigated. For instance, the Boston Globe is currently suing a number of police agencies after several controversial rulings allowed them to withhold reports about cops arrested for alleged drunk driving. This clause would also disincentivize appeals to the supervisor, which in turn might overburden the courts.

Another big concern is that the law does not explain what it means for a request to harass or intimidate. This particular clause is quite bizarre because it applies to cases where a court has already ruled that a requester has a right to records. It’s counterintuitive, not to mention dangerous, to allow courts to label legitimate requests as “harassment” or “intimidation.” At best, this language seems like a solution in search of a problem.

 

GOOD IDEA: Setting reasonable timetables

In theory, the current law grants agencies only 10 days to comply with requests. However, this mandate is typically ignored, as a massive audit by Northeastern University journalism students and the Globe recently showed. The supervisor typically takes months to decide appeals, so the process can drag on for an outrageous amount of time. To correct this, the Senate and House bills both set up timetables for the different steps in the process.

Both bills set limits on how long agencies have to produce records. The House bill would grant state agencies an initial 60 days and local agencies 75. The Senate bill would give both types of agencies 30 days. Both bills would also allow agencies to petition the supervisor for one extension. The House bill sets no limit on the extension’s length, allowing agencies to delay requests for months or even years. The Senate bill would typically cap extensions at 30 days.

Critically, both bills also cap the amount of time that the supervisor has to rule on appeals. The House bill would give the Supervisor 10 days to issue a ruling while the Senate bill gives him 15 days. We’re skeptical that the supervisor will adhere to either requirement, but if he does, it could prevent months-long delays.

 

BAD IDEA: … Except they’re not that reasonable

While the idea of having timetables is great, the Senate's bill would extend the amount of time that agencies have to comply with most requests to 30 days. This is the 21st Century, and decades of technological innovation have made the process of storing, retrieving, and copying records more efficient, so giving agencies more time to comply with simple requests seems like an undeserved reward for decades of failure.

In theory, the Senate bill is only supposed to provide agencies 15 days to comply with most requests, but agencies will be able to grant themselves 15-day extensions with little to no oversight. That’s because appealing the extensions will probably take just as long, if not longer, than the extension itself. An agency that grants itself an improper extension would get up to a 15-day reprieve while the supervisor considers the appeal, and any order from the supervisor would likely give the agency additional time to comply.

If an agency grants itself an extension, it would still need to provide a response with an estimated due date within 10 days. However, the bill includes poorly-worded language that leaves it unclear when agencies must respond to requests if they are capable of providing records in 15 days. Since agencies can cite exemptions or demand fees before turning over records, it’s important to establish a window for when a response must be provided in all cases, otherwise the mandated timetables may be meaningless. On a brighter note, Ryan Gelman, the legislative director for Senator James Eldridge, says the Senate plans to clean up this language before the bill is voted on.

The Senate bill also undermines its cap on the length of extensions with a troubling loophole. The supervisor would be permitted to grants extensions of any length if he determines that a request is “frivolous” or “intended to harass or intimidate.” These vague terms were left undefined, so it’s worrisome that they would be included at all.

 

GOOD IDEA: The Pizza Principle

The wise philosopher Michelangelo once said, “Forgiveness is divine, but never pay full price for late pizza.” The Senate seems to have adopted a similar attitude in that their bill would not allow agencies to charge fees when they miss deadlines. Other than mandatory attorney’s fees, this simple change is probably the best one in the bill. For the first time, there would be a strong incentive for agencies to provide records in a timely manner, which could mitigate our gripes about the loopholes in the timetables. We’re desperately hoping that this provision makes it into the final bill because it’s one of the most promising ideas the Legislature has put forward thus far.

 

BAD IDEA: Removing the guidelines for how to make a request

The current law requires agencies to accept hand-delivered requests and requests sent by first-class mail, but the Senate’s bill would strip this language and replace it with nothing. We thought this change was an oversight, so we pointed it out to Gelman, but he says it’s intentional. We’re concerned that stripping these clear guidelines out of the law will jeopardize the public’s ability to make requests. It’s been our experience that when people show up in person, agencies sometimes refuse to take requests, literally lock people out of their offices, and even call the police, and we’d hate for there to even be the potential for the supervisor to sign off on that sort of behavior.

 

GOOD IDEA: Requiring the supervisor to do his job

The Senate bill mandates that the supervisor turn orders over to the attorney general's office when agencies refuse to follow them. While agencies are constantly violating the public records law, it’s extremely rare for the supervisor to refer violations to the AG. In fact, the supervisor stopped referring orders altogether for five years, only resuming last year. Since then, he’s only referred a single violation. Needless to say, taking away his discretion would be a big step in the right direction. The bill would also require the AG to appoint a specific person to look into the unenforced orders, increasing the odds that they will be enforced.

 

LOOKING AHEAD

Overall, there are a few things we're excited about in the Senate bill. It's a vast improvement to the House bill and generally an improvement to the current law. If the best parts of the Senate bill survive and the worst provisions in the House bill are scrapped, then the Massachusetts public records law might become a little bit less broken.

On January 21, we joined a group of journalists and transparency advocates outside the State House to rally for public records reform. You can see video of some of us speaking below (apologies for the poor lighting). We wanted to thank the New England chapter of the Society of Professional Journalists for organizing the rally, as well as everyone who showed up.

On that note, we encourage everyone with an interest in this issue to contact their state legislators, particularly their senators, and tell them to do everything they can to stand up for our right to know what the government is doing in our names and on our dime. Public records reform isn’t exactly the sexiest issue, and we probably won’t get another chance to get this right for a long time. So look up your state lawmakers’ contact information here, shoot each of them an email or give them a ring, and make your voice be heard.