Public Records Should Be Accessible with Penalties for Failure To Comply

IVES2By: Senator Katy Ives – March 2014

Given this is The Valley Patriot’s 10th year anniversary special edition, I would like to highlight legislation in the State House especially relevant to freedom of the press.

Government should have transparency and accountability and the only way to ensure that this is occurring is to have access. Under Chapter 66 Section 10 of the Massachusetts General Law, a custodian has 10 days to comply with a request for public information. However, there are no significant penalties for non-compliance with this law.

At the request of Valley Patriot publisher Tom Duggan, I filed Senate Bill 1520, “An Act Relative to Obtaining Information,” which would implement fines on the custodian of public records for failing to comply after 30 days and until compliance occurs.

In addition, a non-compliant custodian is responsible for any court costs incurred after 60 days of the original request. SB 1520 was heard on October 15, 2013 before the Joint Committee on State Administration and Regulatory Oversight. I am advocating for access to information, available to all within a reasonable time frame and for residents to have recourse in instances where their requests for public information are ignored.

Currently, there are no teeth in the law to hold someone accountable for not fulfilling the request within the mandated time period. News publications experiencing difficulty gaining access to public records are often left to incur high attorney fees and navigate the court system in order to get information that should be available to the public.

On Wednesday, March 5 my bill was incorporated in HB 2846 “An Act to Improve Access to Public Records,” sponsored by Representative Peter Kocot. HB 2846 makes a number of reforms, including adequately addressing electronic records and its copying costs, as well as awarding attorney fees when the party seeking public records substantially prevails, and implements a fine of not more than $100 for each day any public officer neglects or refuses to comply with a request. I have made it one of my top priorities as a State Senator to increase government accountability and transparency across the board. This bill will strengthen the public’s access to public records and that can only be a good thing. I will continue to work toward the passage of this bill and to advocate for the interests of the Merrimack Valley.


Committee on State Administration and Regulatory Oversight Bill Summary

Bill Number: H. 2846, An Act to improve access to public records. Sponsor(s): Peter V. Kocot, Anne M. Gobi, Denise Provost, Kathleen O’Connor Ives and others. Hearing Date: October 15, 2013 Current Law: M.G.L. Chapter 4 § 7. Chapter 66 § 3, 6, and 10.

Summary of Proposed Law:

Section 1. Adds the following language to the definition of public record in clause 26 of section 7 of chapter 4:“including public information which may be separately retrieved from an electronic record.”

Section 2. Amends section 3 of Chapter 66 by striking the first 2 sentences containing an out dated definition of “records”.

Section 3. Amends chapter 66 by adding a new section 3A. Section 3A will require that when designing or acquiring a new electronic recordkeeping system or database the custodian of the public record must ensure that the system is capable of providing date in a common format. In addition, when the information maintained electronically contains both public and information that is exempt from public record, the custodian must ensure a manner of storage and retrieval that segregates public record information in order to ensure maximum public retrieval including ensuring that all contracts entered into do not impair public access to records.

Section 4. Adds a new section 6A to chapter 66 requiring every agency to designate one or more records access officers to have custody of all public records whose names and pertinent contact information are to be posted conspicuously in offices and on websites. Record access officers shall be responsible for coordinating the agencies response to requests for records and shall ensure that the agency (a) assist requesters in identifying records sought; (b) indicate in response to a request whether the records are available electronically and in what manner the records are stored; (c) contact requesters if the response to a request would be so voluminous and assist in focusing the request so it can be facilitated in a timely manner; and (d)coordinates with the Supervisor of Public Records to ensure records are preserved in accordance with law. Annually updates reference materials including: a reasonably detailed document classification scheme outlining categories of records maintained by the agency, a list of all major databases maintained by the agency and a record of all public records requests . In addition, these reference materials are to be posted annually on the agency’s website.

Section 5. Strikes subsection (a) of section 10 of chapter 66 and inserts a new subsection:

Requiring every person having custody of a public record to permit it or any segregable portion to be inspected, and to furnish one copy at no more than actual cost.

Further defines “actual cost” taking into account the actual cost of materials used, an amount equal to the hourly salary of the lowest paid employee with the skill needed to complete the request, provided that no fee shall be charged unless at least 2 hours is needed to prepare the copy of the record. In addition, When the custodian has to engage an outside service to prepare a copy because the technology available is inadequate, the custodian may only charge the actual cost of the preparation, provided that no fee may exceed the hourly salary of the lowest paid state employee who can provide the service. Fees for black and white photocopies or computer printouts can be no more than 5 cents per letter size and 7 cents per larger page. Every custodian shall inform the requester of the cost of preparing the copy. Permits the custodian to waive fees when it is in the public interest.

Section 6. Establishes that court proceedings under this section will take precedence on the docket over other civil cases. In addition, the court shall award attorneys fees when the party seeking public records substantially prevails. A settlement in the plaintiff’s favor is not required if the court determines that the defendant’s case lacked a basis in fact or was not in good faith.

Section 7. Amends section 10 of chapter 66 to insert 3 new paragraphs.

(e) requires custodians to make public records which are available in electronic form available to the requester in said form. The custodian shall provide the record in any format requested if the record is readily reproducible in that format. If the request does not specify electronic format than the custodian shall provide the record in a common format that is reasonably usable. A custodian may only charge the actual cost of materials provided in electronic form.

When the custodian has to engage an outside service to prepare a copy because the technology available is inadequate, the custodian may only charge the actual cost of the preparation, provided that no fee may exceed the hourly salary of the lowest paid state employee who can provide the service. Any programming needed to retrieve a record or to provide a record in a requested format may not be deemed preparation or creation of a new record.

(f) directs every agency with the ability to do so provide public records at no charge through public internet access. A custodian state agency shall be required to provide free internet access to public records in the case of (i) final opinions, decisions, orders or votes from agency proceedings; (ii) annual reports; (iii) reports to the General court; (iv) notices of regulations proposed under chapter 30A; (v) notices of hearings; (vi) winning bids for public contracts and (vii) any public record information of significant interest to the general public.

(g) directs the secretary of each executive office to promulgate rules and regulations by October 1, 2014 to carry out the requirements of the act. The constitutional offices shall also adopt regulations by October 1, 2014.

Section 8. Establishes a special legislative commission comprised of members of both the House and Senate to study the availability to the general public of information concerning the legislative operations of the general court. The commission shall examine procedures and practices of both the House and Senate and their committees regarding among other matters, scheduling and hearing notification, public agendas, public testimony and committee votes. In addition the commission shall study the publication of legislative records involving session, roll court votes and other matters. Furthermore, a study of best practices in other states and in Congress shall be reviewed.

The commission may as needed partner with outside groups including, but not limited to the ACLU, Common Cause, and other groups.

The commission shall convene within 45 days of the passage of the Act and shall report its findings together with any legislation by October 1, 2014.