Massachusetts Legislators, members of the media and 1st amendment advocates testified last month before a joint House and Senate committee on Beacon Hill, asking legislators to add penalties to the state’s fake public records law.
The law, MGL Ch. 66, states that the keeper of records in any municipality or public agency must turn over public documents within ten days of request.
But, Valley Patriot publisher Tom Duggan detailed for lawmakers his newspaper’s struggle to get public documents over the last eleven years, saying that officials know there is no penalty for violating the public records law “and they take advantage of that fact.”
“In 2012 we submitted a public records request to get records from the City of Lawrence to see how much the city was paying outside legal counsel. We were told by the former Mayor of Lawrence, Willie Lantigua, that he wasn’t even going to make the effort to look for public records because there was no penalty for refusing.” Duggan then detailed how he received a letter from the city attorney saying the records he was looking for were indeed public record, and that if he paid $61.81, the city would turn over the records.
“I personally went to the City Attorney’s office and handed them a check for $61.81. They took my check, they cashed my check, and then never turned over the documents, forcing us to incur more than $11,000 in legal bills to bring the city to court to get the records.”
Duggan said that even though three superior court judges ordered Lantigua to turn over the records he continued to refuse.
“Eventually, the voters took care of that problem when they threw Lantigua out of office and the incoming mayor gave us the documents we were looking for, but that was long after the documents were of no use to us.”
Duggan is credited with writing Senate Bill S1700, which was submitted by State Senator Kathleen O’Connor Ives. If passed, the bill will personally fine public officials $50 per day for every day they do not turn over public documents. The Ives bill will also allow members of the public to recoup legal fees and court costs if they have to take a public entity to court to get public records released.
GALVIN’S SUPPORT…. KIND OF…
Secretary of State Bill Galvin, who has been resistant to releasing public documents out of his own office, surprisingly showed up at the legislative hearing and testified that fines should be imposed on officials who refuse to release public documents, adding that he believes reimbursing the public for court costs should be part of the law.
“I strongly support the idea that when a requestor … is willing to go to court themselves, they ought to be able to recover court costs. There ought to be some means by which they [public entities] would give back the costs that they [the public] would incur to enforce the order to the supervisor. Also there might be some system of fines on agencies that fail to cooperate. These would be some clear areas of enforcement,” Galvin said.
Secretary of State Galvin said that he believes the public should be charged fees for obtaining public records, even electronic records that require no copying and no paperwork. Galvin also lamented that too often, fees are used to discourage members of the public from seeking documents.
“One of the great concerns we have is that we frequently will decide a case, it will be decided that it is a public record, then having decided it as a public record, the agency will then hit the requestor with an enormous amount of fees in order to get the requestor documents, frustrating the requester all the more. There is clearly a basis for making a standard fee for replication of public records whether it be electronic or paper.”
“The taxpayers already paid for these records, why should we have to pay twice?” he asked on 980WCAP radio after the hearing.
“The fact is, we pay public officials to create and compile these records, there’s no reason to charge the public again. What about the poor and minorities who cannot afford to get copies of public records? Isn’t it racist to give records to rich white people who can afford them but not poor minorities who do not have the resources? It seems to me that Secretary Galvin and his party have a hypocrisy problem on this issue. Public records belong to the public and we already paid for them, they are our records and we shouldn’t be suppressing the public’s right to obtain them.”
BIPARTISAN SUPPORT FOR PUBLIC RECORDS
“It’s important, if we are going to have teeth in this law that encourages public officials to comply with it, that they have an incentive to release public records in a timely manner. To me, that means fining the individuals who are legally responsible for releasing the records in the first place,” Senator Katy Ives (D) said on 980WCAP last year when she filed the bill.
“The problem with this law,” Republican Rep. Jim Lyons of Andover said. “is that when an elected official or a holder of public records simply refuses to comply with the law, like Mayor Lantigua … in Lawrence, there is no penalty. All the Secretary of State can do is send them a nasty letter, and as we have seen in the case of The Valley Patriot that doesn’t work,” Rep. Lyons said.” I fully support this bill and I will vote for it.”
Both Lyons and Methuen Rep. Diana DiZoglio (D) filed the exact same bill and eventually signed off as co-sponsors of the Ives Bill, which successfully got out of three subcommittees with a favorable recommendation.
“If citizens are not able to gain access to public documents, we cannot claim that there is transparency in government,” DiZoglio said. “If we don’t have some kind of penalty, there is no enforcement and people are not going to comply … this is what I ran on, public accountability, transparency in government; this definitely has to be done.”
Also a co-sponsor of the bill is Methuen State Representative Linda Dean Campbell.
“The one thing we need to ensure is that our government can be held accountable for their actions, it’s the right of the people to get access to public records. I absolutely believe this law needs to be changed and we absolutely need to have stiff fines and penalties for those who refuse to release records to the public,” Campbell said.
Senator Ives said that the proposed penalties in her bill would “incentivize timely compliance with reasonable public records requests and encourages increased government transparency and accountability.”
“I think it’s great that we have been able to put together a coalition of left wing democrats and right wing republicans, people who generally do not agree on anything, to work for more open, more transparent government,” Valley Patriot publisher Tom Duggan said.
“When someone like Neil Harrington, the town manager of Salisbury, or former Lawrence Mayor Willie Lantigua can comfortably sit back and break the law with impunity because there is no penalty for breaking the law, its time to change the law. That’s what I’m trying to do. As publisher of a newspaper, we submit a lot of records requests and most officials comply. But when you are dealing with certain officials who do not want the public to see what they have been up to, you have to jump through hoops, sometimes for years, and then never get the records because they know they can get away with concealing them.”
Senate Bill S1700 is one of many public records bills making their way through the legislature. State Senator Jamie Eldridge has also filed a bill mandating public agencies, including cities and towns, put all their public records online in an easily searchable format to ease the number of requests for public records.
“I have always believed strongly that the public should have instant access to public information, and the information public officials use to make decisions. I am someone who believes that we need to work hard to restore people’s faith in government. Part of how we do that is to make all information, and how we make our decisions as public officials, available online and as accessible as possible.”
GALVIN WANTS TO LIMIT AMOUNT OF RECORDS PUBLIC CAN REQUEST
While Secretary Galvin said he supports penalties and court costs being added to the public records law, he also said that he wanted the legislature to narrow the scope of what kind and how many documents a member of the public can request. He cited instances where people had asked for volumes of information over a period of years so they could sift through the documents themselves instead of telling officials what they are looking for and letting them filter the information.
“Let me tell you why that’s a bad idea,” Valley Patriot publisher Tom Duggan said on his radio show on 980WCAP in response to Galvin’s statement at the committee hearing.
“If we cannot request volumes of documents so that we, as members of the public can do our own research, we are stuck having to accept that a public official has gone through them and accurately pulled out the information we are looking for. That’s not acceptable. The mere fact that Galvin wants to narrow this means less accountability. It means we have to tell the officials who or what we are investigating, and in the case of corrupt officials like Willie Lantigua and Neil Harrington, it gives them a heads up as to what we are working on. In my experience, and I’ve been doing this a long time, that is when documents start to disappear.”
Duggan says he expects his bill, S1700, to be reported favorably out of the legislative committee and is readying a fight in the full House and the Senate.
“It’s not enough that we brought together Democrats and Republicans to support this as well as the Tea Party and left wing groups, what we need now are commitments from the rest of the legislature and Governor Baker. I will be on the phone with every legislator who will take my call over the next few months lobbying for this bill, and anyone who cares about holding their government officials accountable should be doing the same.”
A WELCOME CHANGE
State Representative Jim Lyons says he is pleasantly surprised that there are Democrats willing to buck their party leadership to stand for changes in the public records law. Lyons has been calling for reforms for years.
“Having Democrats beat this drum is wonderful,” he said giggling. “I wish more of them would do that. With a little help from rank and file Democrats we can send a clear message that the way it is now, is simply unacceptable. I welcome any help and I will work with anyone who is sincerely interested in holding our public officials accountable. I believe the timing could be right on this one and we might be able to get real meaningful legislation passed. I think at the end of the day, what you will see is a revolt on Beacon Hill. A revolt where the members say to the leadership ‘something has to be done here’, this has to stop… and the leadership will have to listen.”
“There is absolutely no need for The Valley Patriot or anyone else out there to fight this hard to find out what our government officials are up to. But at least now we can do something for future cases and make sure things like what is going on in Lawrence will not happen again. I give The Valley Patriot a lot of credit here, you guys are making a difference and I think, working together we are going to get this law changed.”
Senator Eldridge Champions Public Accountability in Records Law (February 2013)