By Naomi Kooker

BOSTON, Mass.—Members of the media, community organizers and legislators packed a hearing room Tuesday, May 26, at the State House to discuss bills that would revise the Massachusetts Public Records Law, which advocates claim is woefully outdated.

In the words of Secretary of the Commonwealth William F. Galvin, the system is “good intentioned, but it does not keep pace with the times.”

Lack of electronic access, no penalty for noncompliance and high fees topped the list of reasons why the law needs amending. The state’s public records law was adopted in 1851 and has seen just 23 amendments since then—some minor as changing a government department name to revising exemptions. The slow response to update the law leaves the seat of the American Revolution in an ironic state of complacency.

Advocates say the staid law undercuts state government and puts democracy in jeopardy, while naysayers caution the proposed revisions could inadvertently overtax towns and cities.

“I believe government has important work to do and anything that undermines public trust in government makes it difficult for us to do our work, whether that’s supporting schools or healthcare, or good transportation or the environment,” said Senator Jason M. Lewis (D-Winchester), sponsor of bill S.1676. “And not having access to public records in a convenient and affordable way undermines public trust in government.”

Lewis’s bill and others’ seek to regulate and improve access to public records in Massachusetts by making records more affordable and the process more efficient while keeping agencies and agency workers who refuse to comply with the law accountable.

Some provisions in S.1676, for example, would require state agencies to have one or more records access officers—a person designated to handle only public records requests; limit and monitor the fees for obtaining records (e.g. computer printouts or copies would cost no more than five cents for letter-size pages); encourage and create the access of electronic records; and fine a public officer upwards of and no more than $100 per-day if that person neglects or refuses to fulfill a lawful public records request.

Lewis acknowledged that while watchdog groups and citizens often make public records requests, it is the journalists and members of the media who are the main constituents. “I think it’s essential that they have access to information that rightfully belongs in the public domain,” he said.

Society of Professional Journalists New England Chapter representative Bill Marcus testified before the Joint Committee on State Administration and Regulatory Oversight saying, “Affordable electronic access to our court records and an internet index of court records is a function of a healthy republic.”

Tom Duggan, owner and publisher of The Valley Patriot in North Andover, discovered the law lacked traction when neither the attorney general’s office nor Galvin’s office could enforce the public records law when the City of Lawrence repeatedly refused to comply with Duggan’s request to see lawyers fees the city paid to a law firm with which it was doing business. Even after the newspaper handed over the required $61.81 fee—and the city cashed the check—the records were not turned over.

“We had three separate judges say on the record that because there’s no penalty in the law for violating the state’s public records law, there was nothing that they could do,” Duggan told the committee.

The newspaper sued the city, which spent upwards of $50,000 of taxpayer money to fight the suit, and the paper incurred $11,000 in its own legal fees. It took a new mayor of Lawrence three years later for the paper to receive the public documents, which were so late in coming they were moot.

David Cuillier, SPJ’s Freedom of Information chair and director of School of Journalism at the University of Arizona, said while some states, including Washington, Florida and Texas have successful public records penalty laws, most, like Massachusetts, do not.

“That’s a huge problem nationwide,” said Cuillier, who researches and teaches access to public records. “Without penalties, the [public records] laws are worthless, useless. They become tools of secrecy, not tools of transparency.”

While Geoffrey Beck, executive director of the Massachusetts Municipal Association, concedes the law needs revising, he raised concerns about the bills’ provisions. He said the cap on fees, for example, would force cities and towns to either increase property taxes to help pay staff for its time and resources, or cut budgets in other areas.

“Public budgeting is a zero-sum game at the local level,” said Beckwith.

SPJNE is among the 36 organizations that form the Massachusetts Freedom of Information Alliance, which supports updating and modernizing the Massachusetts Public Records Law.

All government records are considered public unless they are specifically exempt, such as personnel or medical files, and trade secrets.

If the Legislature does not take action to revise the law by August 5, Secretary Galvin said he would file an initiative that would petition to revise the law.

Society of Professional Journalists New England Chapter representatives Bill Marcus and Naomi Kooker, author of this post, were among the attendees at the hearing. Marcus testified on behalf of the chapter. Click here to access his full testimony.

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