Please contact your state legislators and the governor to voice your support for open government. See the last paragraph of this article for information.
This week is Sunshine Week, a national initiative to promote open, transparent government by educating people about freedom of information laws, which are supposed to give the public access to government records. In Massachusetts, our public records law is pathetic and unenforced, leaving the people of the Commonwealth with very limited access to information about what is being done with their tax dollars.
Under the public records law, anyone can request documents from any state or local government agency. Agencies are required to comply with records requests in 10 days, but often stonewall for months because they generally face no consequences. There are a large number of exemptions which government agencies invoke (rightly and wrongly) to withhold information. The law also allows government agencies to charge huge fees for information that is in the public interest. And, to top it all off, three of the biggest institutions in the state are completely exempt: the governor, the state legislature, and the state courts.
The Secretary of the Commonwealth is supposed to provide oversight, but typically sides with government agencies and hasn't referred any violations of the law to the attorney general's office in years. Secretary of State William Galvin's handling of the law has been so unpopular with with press that The Boston Globe, The Patriot Ledger, The Boston Herald, and all of GateHouse Media Massachusetts recently united "in an unprecedented, coordinated condemnation of [his] rulings on the state’s public records law."
The public records law hasn't been significantly updated since 1973. That's the year when Tricky Dick Nixon was still president, the Supreme Court decided Roe v. Wade, George Steinbrenner bought the Yankees for $12 million (now worth 2.5 billion according to Forbes), and KISS played their first show. It was a time when the internet was still a work-in-progress, an era of land-line telephones and fax machines. In fact, the first cellphone wasn't invented until that year, and it looked like this:
This important law has been left untouched long enough that, at present, it still requires that records kept by the state be prepared with the stuff Jell-O is made out of, which we didn't even know was a thing until we looked into it. Seriously. The current law says, “All written or printed public records shall be entered or recorded on paper made of linen rags and new cotton clippings, well sized with animal sizing and well finished or on one hundred per cent bond paper sized with animal glue or gelatin, and preference shall be given to paper of American manufacture marked in water line with the name of the manufacturer” (emphasis added).
Thankfully, there is a proposed update to the public records law that was recently filed by Representative Peter Kocot (D-Northampton) and Senator Jason M. Lewis (D-Winchester). In addition to striking the archaic rule about animal sizing and glue from the law, the proposed "An Act to improve public records" would make a number of other changes to move Massachusetts away from the animal scroll era into the digital age:
- It sets standards for keeping digital records and databases. It requires record keepers to hold and provide records in common formats that are useable by most computers. The update also addresses contracting out electronic record storage. It states, “No custodian of a public record may enter into a contract for the storage of electronic records containing public record information that impairs or restricts public access to those records.”
- It mandates that “Every state agency, as defined in [the law], shall designate one or more employees as records access officers” making a single, identifiable person responsible for the records.
- It mandates that agencies post their records access officer's contact information publicly, including online if the agency has a website.
- One of the new responsibility assigned to the records access officer is to prepare a yearly reference guide of a detailed list of categories of the records held by the agency and a list of all major databases maintained by the agency. These must be posted publicly along with a list of all requests received and responses issued.
- Government agencies would not be allowed to charge fees for public records if preparing them takes less than two hours or “if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of operations or activities of the government.”
- Costs for photocopying and printing public records would be reduced from 20 cents and 50 cents per page respectively to 5 cents per letter size page or smaller or 7 cents per legal size page.
- It would be mandatory for the Secretary of the Commonwealth to refer cases to the attorney general or local district attorney when an agency refuses to comply with an order to comply with the public records law. The current law leaves it up to the secretary's discretion.
- It would be mandatory for the attorney general or local district attorney to follow through on cases referred by the secretary. The current law leaves it up to the attorney general or district attorney's discretion.
- Judges would be required to award reasonable attorney’s fees to plaintiffs who successfully sue government agencies for withholding public records. Currently, litigants must pay their attorney’s fees out of pocket even if they succeed, discouraging such lawsuits.
- Government agencies would be required to post a number of records online including budgets, winning contract bids, and any records that have been requested multiple times.
- Fines for government officials who fail to comply with the law would be substantially raised from $20 a month to $100 a day.
There are some things we don't like about this bill. For instance, it gives government agencies 15 days to comply with records requests whereas the current law only gives 10. There are also areas where the bill doesn't go far enough. For instance, it doesn't touch any of the exemptions to the public records law or apply the law to the governor's office, state legislature, and state courts.
That said, it's still a good bill overall and a big step in the right direction. The bill is supported by the recently founded open government group Massachusetts Freedom of Information Alliance and we support it as well. If this law is passed, we believe it will make it easier for journalists, scholars, historians, and concerned citizens to find out what the government is doing on our dime.
We've already called our state legislators to voice our support for the bill and we hope that you will too. This Sunshine Week we ask you to reach out to your state representatives and senators to request that they pass the update to the records law. To find your state representative and senator and their contact information click here. Tell them you support transparent government and hope they'll pass HB 2772 (if they're a representative) or SD 1235 (if they're a senator). If you've got a few more minutes, contact the governor's office to voice your support for transparent government as well.