Public Records LawOn Friday, June 3, 2016, Governor Charlie Baker signed the public records reform bill unanimously approved in late May by both the state Senate and House of Representatives.  This is the first major overhaul of the state’s public records law since 1973 (more than four decades).

The bill, which goes into effect on January 1, 2017, looks to enforce timely responses to public record requests and reduce costs to those requesting the records.  Governor Baker is quoted as saying that the changes represent “a new way of doing business” in Massachusetts.  While the bill was heavily supported by the legislature and critics who felt the current version of the law failed to provide for government transparency, the changes—at least initially—will likely be somewhat burdensome for municipalities and staff responsible for compliance.

WHAT’S CHANGING?

Previously, municipalities were responsible for navigating and ensuring public record compliance on their own.  Under the new law, the Supervisor of Records is obligated to disseminate educational materials for municipalities on public records law compliance.  Regulations are expected from the Supervisor of Records later this year.

In addition, the bill requires all state agencies and municipalities to appoint a point of contact known as a “public-records access officer” to respond to and facilitate all records requests.  The name and contact information for this person must be easily accessible and posted both on the municipality’s website and in the municipal building.

  • Time for Responding

The new law requires that most requests for public records be fulfilled within 10 business days, with limited extensions allowed for burdensome requests. This is a significant change from the current version of the law which requires only that a response—either an offer to provide the requested materials or a written denial—be provided within 10 calendar days.

When faced with a burdensome request, an agency or municipality may inform the requestor within the 10 business day period, that due to the magnitude of the request, a response will be provided within 25 business days.  Included in this notification must be: a confirmation that the request was received; notice and identification of any records the municipality plans to withhold (along with the reasons for the withholding); an invitation to discuss modifying the request or a proposal to modify the request or scope of the request (if appropriate or necessary); notice of any records not in the possession of the public records officer; and a detailed description of why additional time is needed to comply with the request.  The response must also provide the date by which the city or town will be able to comply with the request, an estimate of any fee to be charged in connection with the request, and a statement informing the requestor of his/her right to appeal to the Supervisor of Records.

If no more than 20 days have passed since the date of the initial request and the municipality finds that it is unable to comply with the 25 day extended time frame, it may petition the Supervisor of Records for a single 30 business day extension.  Such extensions are at the Supervisor’s discretion and granted only if the municipality can show good cause for the delay.

On a positive note, if, in reviewing a municipality’s request for an extension, the Supervisor determines that the request is part of a “series of contemporaneous requests that are frivolous or designed to intimidate or harass,” then the Supervisor may grant a longer extension or relieve the city or town of its obligation to comply with the request.

  • Limitation on Fees

Both the current public records law and the new law allow municipalities to charge a “reasonable fee” to cover the cost of complying with a public records request.  Generally such fees may not exceed “the actual cost of reproducing

[a] record.” Under the new reform law, however, a city or town with a population greater than 20,000 may not charge for the first 2 hours of staff time spent searching for, retrieving, or compiling records.  After the initial 2 hours, these municipalities may charge an hourly rate identical to that of the lowest paid employee capable of answering the request.  While this is the same in the current version of the law, under the new law the hourly rate is capped at $25 an hour unless the municipality obtains permission from the Supervisor of Records to charge more.  Municipalities with populations less than 20,000 are allowed to charge an hourly rate – also capped at $25 an hour absent the Supervisor’s consent – for all staff time spent searching for and retrieving records.

In addition to staff time, a municipality may also charge the actual cost of a storage device or materials as part of the fee and no more than $.05 per page for black and white copies. This is consistent with the changes made to the regulations last February (see “ALERT! Fee Change for Public Records Requests,” April Client Advisor for more information).

No fee can be charged by the records access officer unless he or she has responded to the requestor within the 10-day window triggered by the request.

  • Format for Producing Records

Unless the requestor specifically asks for a non-electronic format, or the record cannot be accessed in an electronic format, the records access officer must provide the requested record(s) via electronic means.  Furthermore, the records access officer is responsible for making certain public record documents available in an electronic format on the municipality’s website.  The new law also requires that when municipalities adopt new electronic databases or software systems, they consider the ease of making files available for public records requests.

  • Enforcement and Damages

Requestors who do not receive a response from a municipality within 10 business days or are unhappy with the response received, may appeal to the Supervisor of Records.  The Supervisor of Records has 10 business days in which to make a determination as to whether a violation has occurred.  When the Supervisor determines that a violation has occurred, it must take steps to ensure the municipality complies with the request.  A municipality’s continued failure to comply may result in the Supervisor seeking intervention from the Attorney General’s office.

If a requestor is not satisfied with a determination by the Supervisor, the requestor may appeal to superior court.  Under the new law, the requestor can also elect to skip the administrative review process, and file a claim directly in superior court asking the court to compel the municipality to comply with its request and seeking an award of damages.

The new law also allows the Attorney General’s office to compel compliance at any time by way of petitioning the superior court.

Whether before the Supervisor of Records or in superior court, the presumption is that the record in question is public.  Therefore, the burden is on the municipality to prove the record is not public, or should be withheld from disclosure under one of the statutory exemptions. If a court is unpersuaded by the municipality’s argument(s) for not complying with a records request, it has the authority to impose a course of action on the municipality and to award the requestor attorney fees and court costs.  The new law favors awarding fees to the requestor unless the request falls within any of the following limited circumstances:

  • the municipality did not violate the law;
  • the municipality reasonably relied upon a published opinion of an appellate court of the commonwealth based on substantially similar facts;
  • the municipality reasonably relied upon a published opinion by the attorney general based on substantially similar facts;
  • the request was designed or intended to harass or intimidate;
  • the request was not in the public interest and made for a commercial purpose unrelated to disseminating information to the public about actual or alleged government activity.

If the court awards costs, the municipality is obligated to waive any fees associated with complying with the request.  And even when the court does not award costs, it may require that the city of town waive the costs of complying with the request.

The new law also subjects agencies and municipalities to punitive damages ranging from $1,000-$5,000 for failure to comply (in good faith) with the new requirements.  When the court rules in favor of the requestor and finds that the municipality, “in withholding or failing to timely furnish the requested record or any portion of the record or in assessing an unreasonable fee, did not act in good faith,” it may order a city or town to produce a record without cost to the requestor and impose punitive damages against the City or Town.

WHEN DO THE NEW CHANGES TAKE EFFECT?

For the most part, the new rules take effect on January 1, 2017.  Municipalities will not be responsible for posting the required documents on their websites until July 1, 2017.  Given the sweeping changes and penalties for non-compliance, cities and towns are encouraged to review and update their policies and procedures for responding to public records requests sooner rather than later.  Early adoption of the new law may help ensure successful compliance come January 1, 2017.

NOTE: The above outline is a summary of key components of the new law.  The full text of the law is available here and should be consulted to ensure full compliance with the law.

For questions regarding the new law or help updating your current policies and procedures, please contact your NMP attorney.