Editorial: Get serious about public records reform

Published: 3/24/2016 6:04:17 PM

Massachusetts received its statehood in 1788. Two hundred and twenty-eight years later, it still hasn’t gotten its public records laws right.

Traditionally ranked near the bottom of the barrel in the country when it comes to providing public access to government records, the existing law contains wishy-washy language open to interpretation and it lacks teeth.

But blame extends beyond the law to a prevailing attitude among many local and state records keepers that a request for public records is a hostile exercise intended to simply to embarrass or inconvenience public servants. Generally, that’s not the case.

Some records keepers see it as extra work to turn over documents and believe it should cost those requesting access lots of time and money. This attitude suggests that government owns the records. In fact, the people paid for it and have a right to inspect it and ensure government accountability.

In Massachusetts, government has to get with the program, already embraced by most states in New England and other parts of the country.

Complying with a records request should not be regarded as “extra work” but instead as part of the job of running government and being accountable. The argument that municipal employees in particular are burdened by complying with public records requests because they do not have the time is hogwash.

Most towns do not store the kinds of complex data and information that is difficult to sort, track down and if necessary, redact. The documents people seek at the local level are usually at an employee’s fingertips, sitting in an email file or filing cabinet.

The state’s public records law uses language like “at reasonable times,” “without unreasonable delay,” and “payment of a reasonable fee,” when it speaks of access to records. Too many officials have used such language to penalize those who request records with unjustifiable delays and excessive fees.

It was not supposed to be this way when an earlier generation of citizen lawmakers crafted the law, which states that a “custodian of a public record shall, within 10 days following receipt of a request for inspection or copy of a public record, comply with such request.” Unfortunately, the word “comply” has come to mean “respond,” which can send records requests into a black hole.

We urge the public to pay close attention to what is going on in the Legislature right now. A conference committee is continuing to meet on House and Senate bills to reform the state’s Public Records Law, which has not been updated since the 1970s.

Reform is long overdue. The bills are well-intentioned and would provide more specific language, deadlines for compliance and enforcement penalties, allowing people to recoup legal costs and attorneys’ fees when they prevail in records battles in the courts. They also would lower fees in some cases, particularly for copies of records.

But the legislation contains a major flaw: While both bills require local officials and government agencies to respond and comply with requests within 10 and 15 days, they also provide opportunities to delay access to records for two months or more.

In our view, these windows of extension, particularly in the House bill that allows municipalities up to 75 days, are too wide and ripe for abuse.

As The Recorder reported Monday, the timelines proposed in the current bills would lag behind many of the existing public records laws in the five other New England states, which require shorter time frames to respond and quicker avenues of appeal even if they do not specify access deadlines.

Rhode Island seems to have struck a fairer balance when it reformed its public records law in 2012. Government must respond to records requests within 10 days in that state. The law provides an extension of 20 business days after a records holder explains in writing the need for additional time. Why 60 or 75 days as proposed in Massachusetts? Is it harder to produce records here than it is in Rhode Island?

Like many bills, the proposed legislation under review is long, detailed and open to contest. In a conference committee Wednesday, the talks veered into issues of personal privacy with state Rep. Peter V. Kocot, D-Northampton, saying ,“It’s a battleground in terms of the concepts of transparency and personal privacy.”

The bottom line is the public wants its records and it wants them as soon as possible. Given how poorly Massachusetts has ranked in national studies on open records access, the proposed legislation should improve on existing laws by leaps and bounds, not baby steps.

While change is overdue, we’d rather have lawmakers take the time they need to get a new public records law right. After, all we’ve waited nearly 40 years. At the least, the reforms should show citizens and the rest of the country that Massachusetts is finally serious about government transparency.


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