House passes revised public records bill

After several months of review and input from stakeholders on all sides of the issue, the House today passed legislation to reform the state’s public records law. The updated version of the bill had been reported out by the House Ways and Means Committee this morning.
 
The bill spells out specific timelines for replying to and complying with public records requests, sets limitations on fees that can be charged by state agencies and municipalities, and includes significantly expanded enforcement authority, including provisions to give the courts the power to require public entities to reimburse plaintiffs’ court costs and attorneys’ fees if litigation is initiated due to disagreements.
 
Approved on the last day of formal legislative sessions for the year, the bill (H. 3858) now goes to the Senate, where it is expected to be taken up as early as January.
 
The public records act has not seen any material change since it was first enacted in 1974, well before the Internet and electronic communications became the norm. The MMA’s position has been to call for balanced changes to prevent the imposition of unfunded mandates on cities and towns, and to ensure that local officials have enough time and flexibility to comply with the act without diverting resources and time from their other important public services and duties on behalf of local residents and taxpayers.
 
During the past several weeks, the MMA has been grateful for the openness and interest in municipal concerns that has been displayed by House Speaker Robert DeLeo, House Ways and Means Chair Brian Dempsey and Vice Chair Stephen Kulik, and Rep. Peter Kocot, House chair of the Joint Committee on State Administration and Regulatory Oversight.
 
The House Ways and Means Committee’s version of the public records reform bill includes greater flexibility for cities and towns than previous iterations and drafts of the bill, including more clarity on timelines, retention of much of the ability of cities and towns to be reimbursed for the cost of fulfilling records requests, and greater clarity in terms of enforcement, and these improvements reflect the House leadership’s openness to the municipal perspective.
 
The proposed bill would establish new procedures for responding to and complying with requests, set some limits on allowable fees, and enhance enforcement provisions, including the potential of greater fines or litigation costs in instances of disputes.
 
“Overall, the House bill is a vast improvement over previous versions,” said MMA Executive Director Geoff Beckwith, “but it still would make the public records act more administratively challenging and litigious for cities and towns.”
 
• Download full text of House Ways and Means Committee’s public records bill (H. 3858)
• Download MMA’s statement on H. 3858
 
Major provisions of H. 3858 include the following:
 
Timelines
• Cities, towns and state agencies would have 10 business days to respond to every public records request with an estimate of the fee to be charged, the time necessary to fully comply with the request (cities and towns would have up to 75 days, and state agencies would have up to 60 days), and a listing of the documents or categories of requested documents that will be withheld by the municipality or agency under existing state and federal law. (There is no change to the current list of excluded documents that may be withheld.)
 
• Cities, towns and state agencies could appeal to the Supervisor of Records for more time if a public records request is too voluminous or broad in scope to complete in 75/60 days, or if they believe the request has been submitted to harass the municipality or agency.
 
• Requestors could appeal to the Supervisor of Records or to Superior Court to challenge the fee estimate, to reduce the time that municipalities or agencies will take to comply, or to challenge whether a requested document can be withheld under state or federal law.
 
Allowable fees
• Copying charges would be limited to 5 cents per page.
 
• Cities and towns could be reimbursed for the staff or vendor time necessary to comply with a request, although cities and towns could only charge the lowest rate for each employee qualified to search for, collect, segregate, redact and reproduce the requested records, and the first two hours of total employee time spent on the request must be provided at no charge.
 
• For state agencies, there are much greater limits on fees. The first four hours of total employee time spent on the request must be provided at no charge, and no agency could be reimbursed more than $25 per hour for employee time spent on the request.
 
• Requestors could appeal to the Supervisor of Records or to Superior Court to challenge the fee estimate, but fees below $25,000 must be appealed first to the Supervisor of Public Records for a decision before an appeal could be filed with the Superior Court.
 
Enforcement
• Plaintiffs would have 30 days to initiate action against municipalities and state agencies for noncompliance, to challenge fee amounts, or to challenge whether a requested record could be withheld.
 
• Courts would have the authority to award attorneys’ fees and court costs to plaintiffs if the court finds in favor of the plaintiff, a consent decree is issued, or if the municipality or state agency voluntarily complies after the suit is filed – and the court would also have the ability to waive or reduce the fees that could otherwise be charged by a municipality or agency.
 
• Courts could require municipal and state agencies to pay plaintiffs from $1,000 to $5,000 if officials have been found to act maliciously or in bad faith.
 
• The attorney general would be given enhanced power to enforce the public records act, and courts would be required to assess penalties on municipalities or state agencies of between $1,000 and $5,000 if a judgment initiated by the attorney general is reached against the public entity.
 
Process
• Cities, towns and state agencies would be required to appoint at least one records access officer to assist with all public records requests, to facilitate compliance, to report to the state annually, and to publicize the public records request process.
 
• If feasible (as determined by the municipal executive), future upgrades to databases and computer systems should include enhancements to make it easier to comply with public records requests. (This aspect of the bill would take effect on Jan. 1, 2016.)
 
• If the record(s) exist in an electronic format, municipalities and state agencies would be required to provide the record(s) in that format or in a commonly used electronic format if so requested by the person filing the records request.
 
• The secretary of state would be required to promulgate new regulations on the law by July 1, 2016.
 
• If passed by the Legislature and signed by the governor, the changes in timelines, fees, appeals and penalties proposed in H. 3858 would take effect on Oct. 1, 2016, and the requirement to appoint records access officers and publicize the public records process would take effect on July 1, 2016.