Language barrier

The Senate unveiled their version of the public records law update yesterday, and their intent appears to be to dramatically improve access to public records. However, there is a serious problem with the bill’s language.

The update replaces Section 10 of the law, the part dealing with public access to records, and there are two potential problems with the newly written section. Most prominently, the update fails to require any response to most requests, and might allow records that do not require fees, or where fees are waived, to escape the 15-day deadline set by the update.

When the Senate replaced all of the current Section 10 they removed the explanations of what constitutes a request, and how a request can be made. They appear to have forgotten to put this important part of the law back in. The current law specifies that requests can be made in writing or in person. It’s important that the law retain this language because it’s been my experience that agencies sometimes refuse and even call the police on people who make requests in person.

And if you were to make a request under the Senate's bill, when would you receive a response?

(b) If the magnitude or difficulty of the request, or the receipt of multiple requests from the same requestor, unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality is unable to permit inspection or furnish a copy of a requested public record within 15 calendar days, the records access officer shall, not later than 10 calendar days following the initial receipt of a request for public records, issue a written response to the person who submitted the request.

Proposed Section 10b governs when written responses are required. But 10b only applies when an agency cannot provide the records within the 15-day window. For any request that hypothetically could be filled within 15 days, the government agency seemingly is not required to provide a written response. There is nothing to compel agencies to provide a written denial, fee estimate, citation of exemptions, etc in most cases in the bill.  

A smaller area of concern is the unclear language in section 10a. The law sets the 15-day limit for agencies to provide records, but this subsection is dependents upon receipt of payment of fees.

Section 10. (a) A records access officer appointed pursuant to section 6A, or a designee, shall, at reasonable times and without unreasonable delay, permit inspection or furnish a copy of any public record, as defined in clause Twenty-sixth of section 7 of chapter 4, or any segregable portion of a public record, not later than 15 calendar days following the receipt of the request if: (i) the request reasonably describes the public record sought; (ii) the public record is within the possession, custody or control of the agency or municipality that the records access officer serves; and (iii) the records access officer receives payment of a reasonable fee as set forth in subsection (d).

If there is no fee assessed or if the fee is waived, the law, as written, might not govern when the record must be provided.

These issues will likely be fixed by an amendment in the Senate or by the joint committee that reconciles the Senate and House bills, but it’s important to bring them up now to be sure they’re addressed.

Overall, this bill is a huge improvement over the House bill and the current law (and especially will be when the kinks are worked out). I feel strongly that this bill is a a good one, and you can expect a more detailed analysis of it within the next few days in my next “Broken Records” column.