MMA letter to senators urges redraft of public records bill

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S. 2120 would impose unrealistically short timelines that would be extremely difficult for communities to meet, would limit fees and therefore lead to unfunded mandates on cities and towns, and would expose public entities and taxpayers to threats of expensive litigation.
 
Dear Senator,
 
On behalf of cities and towns across the state, the Massachusetts Municipal Association is writing to express major concerns regarding S. 2120, the most recent draft of public records legislation that will be before you for a vote on Thursday, February 4.
 
Local government officials recognize the value of updating the Public Records Act. The law has not seen any material change since it was first enacted 40 years ago, well before the Internet and electronic communications became the norm. Legislation to provide greater clarity and common understanding of the framework and specific requirements in the law would be helpful to all parties.
 
The Massachusetts Municipal Association is not opposed to passage of legislation updating the public records laws. Rather, the MMA’s position has been to call for balanced and realistic 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.
 
The challenge is to balance the appropriate concerns of all those involved – the public, media, local taxpayers and government agencies. Moreover, it is essential that any law passed by the Legislature be practical and realistic, so that those mandated to implement the statute can do so without detracting from their other fundamental responsibilities and obligations to serve the public.
 
In this light, S. 2120, unfortunately, is not balanced, flexible or feasible enough for cities and towns and smaller public entities to implement without diverting resources away from other important services and functions. Our analysis concludes that S. 2120 would impose unrealistically short timelines that would be extremely difficult for communities to meet, would limit fees and therefore lead to unfunded mandates on cities and towns, and would expose public entities and taxpayers to threats of expensive litigation. We respectfully ask that the bill be redrafted to make it workable and affordable for communities and local taxpayers.
 
1) S. 2120 has unrealistically short and infeasible timelines.
 
The reality is that cities and towns struggle under limited resources and overly high reliance on the property tax. Communities have eliminated 15,000 positions since the cuts of the Great Recession and have very small administrative staffs. Technology “systems” in communities are a poorly funded patchwork of computers and disparate databases and cannot magically act as a compiler of information across the municipality – which means that fulfilling records requests is mostly a manual task involving significant personnel time. Some 250 cities and towns in Massachusetts have 19,000 or fewer residents, and 50 percent have fewer than 10,000 residents, and thus have very small local governments, with volunteer boards overseeing various departments. Many communities, especially in western Massachusetts, have part-time town administrators, no broadband service, or have town halls that are closed one or more days during the workweek.
 
Many records requests are relatively simple and straightforward. But there are many others that require more research, including legal analysis, to ensure that the rights of all persons are observed and information is not released that would interfere with privacy rights, or to determine whether requested records are exempt under the law, following the exemptions that have been established by the Legislature for sound public policy reasons. This often requires an analysis of state and federal laws as well as an examination of many documents. The people who have to perform these tasks – staff and legal counsel – also have many other duties to perform.
 
S. 2120 would impose a staggered series of 10-day, 15-day, 30-day and 60-day time periods that communities could only implement or access by triggering various notice and appeals processes, which in themselves would consume municipal resources and staff time. Even then the legislation would set a maximum timeline of 60 days, and would not recognize the burden of large or complex data requests, which can include searching years of emails, records from various departments, and multiple databases. These timelines are too narrow and impractical, and would certainly cause communities to divert municipal resources and staff away from their other ongoing responsibilities. We urge you to look at H. 3858 as a strong but much more workable and flexible approach on timelines.
 
2) S. 2120 would limit communities’ ability to be reimbursed for reasonable costs, and thus would inevitably lead to unfunded mandates.
 
As you know, the voters banned the state from imposing new unfunded mandates on cities and towns when they enacted Proposition 2½. For 40 years, cities and towns have been allowed to charge reasonable fees when responding to records requests, but S. 2120 would mandate that the first two hours of staff time be provided at no cost, and that the hourly rate for staff time be capped at $25 per hour unless communities receive special permission from the state. Further, S. 2120 would only allow communities to be reimbursed for time that employees devote to fulfilling requests. Most communities use outside legal counsel, and many hire vendors for technology purposes, but these cities and towns could not be reimbursed for those expenditures. And any time that a department head, human resources director, town manager, or legal counsel reviews a records request, communities would not receive full reimbursement for their actual costs, unless they apply for and receive permission from the Supervisor of Records. This would guarantee hundreds, if not thousands, of appeals to the state each year in order for localities to even have a chance to be more fully reimbursed. None of this factors in the personnel costs associated with the significant new responsibilities the law would mandate on the new public records access officers that communities would need to appoint.
 
Given all of these factors, it is clear that S. 2120 would make administering the public records act much more expensive for cities and towns, creating a new unfunded mandate, contrary to Proposition 2½.
 
3) S. 2120 would expose communities and local taxpayers to threats of expensive litigation, through an unbalanced process that would remove judicial discretion on the issue of attorneys’ fees and court costs. This “enforcement” framework would create a highly litigious and penalty-driven process.
 
S. 2120 would give plaintiff attorneys new financial incentives to pursue costly litigation on public records cases, and would create a disincentive for plaintiff attorneys to resolve disagreements via negotiations between the parties. That’s because S. 2120 would not allow judicial discretion in the awarding of attorneys’ fees and court costs in many instances, even when public entities acted in good faith. The result would be an unbalanced system whereby court action would not be a last option to resolve disputes. It would become a first option that could be abused and manipulated to drive up legal costs for public entities. We just have to look at the current effort by plaintiff attorneys to collect $1.8 million in legal fees from two cities in Massachusetts, which would produce an unaffordable windfall for private attorneys and organizations at the expense of the taxpayers.
 
Specifically, the bill would impose an extraordinary mandate on the courts to award attorneys’ fees and court costs to plaintiffs if the requester has obtained “relief” through a judicial order or consent decree, even if the public entity was acting in good faith, unless it could be proven that the entity was relying on a ruling or advice from the Supervisor of Records or an appellate court ruling, or the case was for a private or commercial interest. In civil rights and racial discrimination cases, the courts retain the discretion to decide whether to award attorneys’ fees or court costs, which means that S. 2120 would treat public records cases with greater deference and importance than essential questions of discrimination. Public entities would also be required to waive all fees and costs related to fulfilling the request if the court awards attorneys’ fees and court costs to the plaintiff, even if the public entity was acting in good faith.
 
S. 2120 would provide one of the most generous and loose standards for mandated attorneys’ fees and court costs in the nation. Virtually any ruling by the court short of utter defeat for the plaintiff would require the court to impose these costs on public entities, even if the public entity prevails on most or nearly all issues. Further, there is no requirement that requesters first exhaust administrative appeals before dashing to court on any perceived violation or disagreement. It should be a consideration that the threat of protracted litigation would chill public employees in the proper performance of their duties, as they would be forced to weigh the risk of unaffordable litigation with the risk of releasing information that is exempt or shouldn’t be released. The courts would be stripped of their discretion to decide whether public entities acted in good faith, which is clearly unfair. Further, the bill includes no allowance for courts to require frivolous plaintiffs to reimburse taxpayers for court costs, which is also unfair.
 
We are asking legislators to make sure that any penalties or provisions for attorneys’ fees or court costs are balanced and do not apply when a public entity is making a good faith effort to respond to requests. The House bill, like nearly 20 states in the nation, recognizes that every case would have a different set of facts and circumstances, and would leave the decision of whether to award attorneys’ fees and court costs to the discretion of the court, except in the case of bad faith efforts by public entities, while also requiring judges who decide not to award attorneys’ fees and court costs to provide a written explanation. This is favorable to plaintiffs, but still allows for the case-by-case discretion that is so necessary. That is the proper framework.
 
Please Talk to Your Local Officials Before Voting on S. 2120.
 
As drafted, this bill is not balanced. The measure would impose an unrealistically heavy administrative burden on cities, towns and smaller public entities, impose unfunded mandates on communities, and expose public entities and taxpayers to threats of expensive litigation. Before voting on this measure, we respectfully ask that you consult with the local officials in your districts, especially in your smaller and medium-sized communities. Please describe the bill to them, and ask if this bill is feasible, affordable and balanced. We are confident that their practical observations will be very informative.
 
It is possible to enact a strong and workable public records bill, just as the House has done by unanimous vote. We ask that the Senate bill be rewritten following the same approach.
 
Thank you very much for your consideration and assistance.
 
Sincerely,
 
Geoffrey C. Beckwith
MMA Executive Director & CEO