A long-pending bill to reform the Massachusetts Public Records Law is back on track to become reality after clearing the state senate last week.
The senate voted 35-0 to approve a revised version of the reform bill passed by the house before the holiday recess in November. The bill now goes to conference committee, where lawmakers from both the house and senate will try to work out a compromise measure to send to Gov. Charlie Baker. The governor has said he supports reforming the law, widely acknowledged to be one of the weakest public records laws in the country.
The bill has had tough sledding in the state legislature where it has revised numerous times and consistently opposed by the powerful Massachusetts Municipal Association which represents cities and towns throughout the commonwealth.
Advocates say the bill will make government more responsible; opponents say it will place an undue burden on small town government.
And neither side is completely happy with the latest version, which among other things would require every government agency to designate at least one person as supervisor of public records, limit the cost cities and towns can charge the public to produce records, and tighten the amount of time they have to provide access to the documents. It also would mandate that judges award attorney fees to anyone who successfully challenges a denial of access to public records, as is done in 47 other states.
“I think it was the best we’re were going to get,” said Pam Wilmot, executive director of Common Cause Massachusetts, speaking to the Gazette by phone this week. “We’re pretty happy about it. The real decisions will be made in the conference committee.”
The Massachusetts Municipal Association will continue its efforts to influence lawmakers, said Geoffrey Beckwith, executive director of the organization. He reiterated concerns about the bill imposing new costs on small town governments.
“The legislation advanced by the senate would be extremely difficult for smaller governments to implement because it would be very labor intensive,” Mr. Beckwith said. “We’re concerned the whole structure is extremely litigious, designed to encourage lawsuits.”
The bill has the backing of both Cape and Islands Sen. Dan Wolf and Rep. Timothy Madden.
The latest version adopted by the senate would require quicker access to public documents. It would require a municipality to “at reasonable times and without unreasonable delay, permit inspection or furnish a copy of any public record.” In most cases the public body has 15 days to comply with a request, but if it is going to deny the request, it must do so within 10 days.
The senate version caps the cost of public records at five cents per copied page. Cities and towns cannot charge for labor to produce the records unless it takes more than two hours, and then can charge no more than $25 per hour. When possible, public agencies must provide records electronically.
The bill also would require towns to post on their website certain common public records in a searchable format, including minutes of open meetings, annual reports, budgets, grant awards and winning bids for public contracts.
State laws requiring the public disclosure of government documents date to 1851. The current Massachusetts law was enacted in 1973. It exempts the state legislature from most public records requirements along with part of the executive and judicial branches of government.
Senator Wolf said this week he believes the new bill is a step in the right direction, especially the provision that awards attorneys fees to successful challengers who have been denied access.
“It makes it much less likely that there ever will be attorney fees, because it’s much more likely that the towns will simply comply and it won’t go to court,” he said.
Jennifer Rand, town administrator for West Tisbury, said in general, she doesn’t see the legislation as burdensome.
We are public, everything we do is public, with some exceptions,” Ms. Rand said. “The taxpayers have a right to that information. I don’t think it’s unduly burdensome. It’s what we do, we provide information. In this age of electronic documents, it’s usually very easy.”
She is concerned that the law provide a way to protect towns against those who take advantage of the public records act to harass public officials.
“That happens, on occasion,” Ms. Rand said. “There are those who use the law to bury the town in work.” She said she favors the law, “as long as we have the ability to say either your request is enormous and we need more time, or we have given you this already and we don’t have to give it to you again.”
Oak Bluffs town administrator Bob Whritenour said he too supports public records reform, but is concerned about the provision for mandatory award of attorney fees. He said that might encourage more predatory practices by attorneys using fees and fines as a threat.
“It seems to me to make more sense that if someone withholds a document unlawfully, and it’s proven that they have done that, they would be subject to paying for these fees,” the town administrator said. “I don’t support any automatic attorney fees in those cases. I don’t think it serves the public interest.”
Senator Wolf said he understands the concerns of town employees, but is satisfied the legislation passed by the senate includes adequate checks and balances.
“There is also a provision in there if a person asking for the documents and the transparency is deemed to be doing it in a frivolous way, there are attorney fees that can and have to be paid by that person,” he said.
The conference committee process and a final vote are expected to take several months.
“Because there is a pretty big difference between the house and senate version, this could take awhile,” Senator Wolf said. “My hope would be we’ll see this out of conference by May.”
If both branches can agree on a final bill and Governor Baker signs it into law, the public records reform legislation would take effect Oct. 1.
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