Public records bill must remain balanced and affordable

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From The Beacon, December 2015
On the last day of formal legislative sessions in November, after several months of intensive review and input from stakeholders on all sides of the issue, the House of Representatives unanimously supported an updated version of legislation to reform the state’s public records law. The measure is an effective balance of strong reform coupled with greater sensitivity to the fiscal, administrative and real-world concerns raised by local officials and other public administrators.
The bill is now before the Senate, and legislators in that branch should embrace the same balanced and careful approach that House members displayed, and resist pressure from interest groups to pile on unaffordable unfunded mandates and infeasible administrative and bureaucratic burdens on cities and towns.
The legislation (H. 3858) establishes 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 for the secretary of state, attorney general and the courts. The bill includes provisions to give Superior Court judges the power to require public entities to reimburse plaintiffs’ court costs and attorneys’ fees if litigation is initiated due to disagreements, and even authorizes punitive penalties of up to $5,000 in certain circumstances.
The public records act has not seen any significant amendment or change since it first took effect in 1974, well before the Internet and electronic communications existed. 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, staff and attention from their other important public services and duties on behalf of local residents and taxpayers.
This is an important point: the MMA and local officials do not oppose updating the public records law. We agree that it makes sense to modernize the law to recognize the changes that have occurred over the past 40 years. But we do voice objection to heavy-handed proposals that would violate the state’s anti-unfunded mandate law or force communities to divert resources away from their other public responsibilities.
Implementing the public records law is an important public good. But there are many other vital public goods that must be implemented at the same time, in every department and agency, from zoning and planning, to fire protection and public education, to building schools and policing the streets, to serving the youth, seniors and veterans, and so much more. To be sustainable and responsible, the public records bill should enhance the current law without harming or impairing the ability to continue delivering other public services.
Unfunded mandates were outlawed by the voters as a central part of Proposition 2½. Why? Because voters know that when local property taxes are capped, the only way to add new programs or responsibilities without harming existing ones is to provide a funding source. Unfunded mandates force communities to cut funding for other important local services, increase the property tax levy above normal inflation, or both.
Some reform advocates don’t seem to appreciate the reality of limited financial and staff resources in cities and towns, and they are now pushing to throw off the balanced approach that House members embraced. A few groups want to slash or eliminate the fees that communities can legally charge to reimburse local taxpayers for the cost of complying with records requests, which would transform the public records law into a major unfunded mandate. And these same groups want to impose time-consuming demands that would require significant and continuous staff resources devoted to new Web posting and dissemination duties (failing to recognize that dozens of localities don’t even have broadband in their community, and most others do not have the staff capacity to do this additional work).
We ask our senators to recognize that in this post-Great-Recession environment, with state aid levels still hundreds of millions of dollars lower than just a few years ago, communities are working with very limited staff and administrative capacity. Municipal officials need flexibility, time and resources to do all of their jobs well, and all we are asking is that legislation to update the public records law reflect this reality.
The House version of public records reform 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 welcome improvements reflect the House leadership’s openness to the municipal perspective.
The proposed bill would also 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, but still would make the public records law more administratively challenging and litigious for cities and towns.
During the entire process, 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.
We hope for the same level of openness and interest in municipal concerns as the issue now turns to the Senate. And above all, we ask our legislators to maintain balance and care as the issue moves forward.