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February 3, 2016
The Senate public records bill, An Act to Improve Access to Public Records, S.2120, represents a significant improvement to our broken records law, which has not been updated in over 40 years.
Transparency in government is the cornerstone of a strong democracy. It checks corruption, promotes fiscal responsibility and efficiency, and allows for greater, more meaningful participation in our democratic system.
The Center for Public Integrity released a report that gave the commonwealth an F on public access to government information for the last 2 years. Organizations, reporters, watchdogs, and regular citizens who wish to see and review public documents are frequently unable to do so, prevented by outright denials, excessive charges, records in useless formats, and long delays in which the requested records never materialize or do so in an untimely manner.
The prosed bill, S2120, will substantially improve access to public records by improving enforcement, reducing fees, setting clear timelines and modernizing access methods to include electronic formats when it is appropriate. There are, however, critical ways to improve S2120 that we ask you to support, and dozens of amendments to weaken it that we ask you to oppose.
Cost Controls -- Amendments 24/35, 25, 48 & 61
Problem: To keep public records affordable and accessible for ordinary residents, charges for the time officials spend reviewing and redacting documents must be kept to a minimum. The Senate bill applies a $25/hour rate cap and prohibits charging for optional withholding of information through redaction. These are great provisions. Unfortunately there is a backdoor way to avoid both—the Supervisor of Public records can approve higher rates and allow charges for redacting information ― and the standard for his or her review is very weak. Any agency or municipality that applies would likely get the exemption.
Solution: Tighten the standard to prevent charges for public records from skyrocketing. These amendments take various approaches: eliminating the exception; limiting their application to requests that are either intended to harass or for a purely commercial purpose; limiting exceptions to work that must be done by a lawyer and capping charges for lawyers' work; and tightening the criteria for granting exceptions.
Preferred approach: Amendments 24 and 35, which would limit additional charges to only apply to requests intended to harass or those that are purely commercial in nature.
Strengthening Attorney Fees -- Amendments 22/60
Problem: Being awarded attorney’s fees when litigation is necessary to compel an agency to provide access is key to ordinary residents being able to enforce the public records law. A majority of other states already require attorney’s fees because they are an incentive for agencies to follow the law in the first place. Enforcement of the law should not be optional.
While the Senate bill would require courts to award attorney fees if litigation leads to a judicial order or settlement (with some exceptions), attorney fees would be merely optional in cases where people are forced to go to court only to have the officials turn over the records at the 11th hour. In other states where attorney fees are optional, they are rarely, if ever, awarded. These amendments would fix this huge loophole so that officials have an incentive to follow the law instead of game the system.
Solution: Amendments 22 and 60 would remove the exception for last minute capitulation.
Electronic Access -- Amendments 21/62, 18 & 51, 34
Problem: More and more records are being created and provided to the public electronically. The bill encourages this efficient and cost-effective practice. It requires state agencies – but not cities and towns – to post a number of types of documents including budgets, minutes, and reference materials about public records requests.
Solution: These amendments would bring the public records law into the digital age in two simple ways. Amendment 21/62 would ensure that public record information cannot be withheld simply because it's kept in a database and would need to be exported by a typical query—which is the basic function of a database. Amendments 18 and 51 would ensure that all municipalities that maintain websites, not only state agencies, post basic guidance for requestors online. Amendment 51 goes further and requires that municipalities with websites also post minutes and other common documents. Amendment 34 requires posting of all invoices and contracts over $500K to be posted on Open Check book, the state spending website, further enhancing access to records and reducing costs.
Granting More Time to Fulfill Requests -- Amendments 10, 11, 12, 57
Problem: Current law requires compliance with the public records law in 10 days. In a recent survey 58% of cities and towns didn’t even respond by that deadline. The Senate bill extends the compliance deadline to 15 or 30 days and allows for an additional 30 if requested — for a total of 60.
Solution: It shouldn't take months to get public records in response to a request. The Senate bill already gives officials flexibility when they need it. These amendments would remove the reasonable timeframes in the bill and provide exemptions for as many as 3/4th of the communities in Massachusetts.
Problem: Dozens of amendments would weaken the bill by erecting barriers or placing burdens on people requesting public records, undermining enforcement of the law, or shifting focus away from government transparency and accountability.
Solution: Please oppose amendments 13, 14, 15, 31, 36, 39, and 42.
Thank you for your time, attention, and concern about open and transparent government.
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