Public records law updates require care and balance

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From The Beacon, October 2015

In July, state lawmakers, facing appeals from advocacy groups and a number of media establishments, moved legislation to update the public records act onto the front burner for action. A draft of the legislation was reported out of committee in short order. Fortunately, legislators agreed to take additional time to deliberate on the measure and fully understand its impact on communities and local taxpayers after municipal officials from across the state expressed serious concerns regarding the high cost of complying with the plan and a lack of balance in the enforcement provisions.

The bill has remained in the House Ways and Means Committee, but could emerge at any time. During the summer and early fall, the MMA has met with the proponents of the bill, legislators in the House and Senate, and key legislative staff to explain the impact on local government and discuss how the law can be updated in a balanced manner that enhances access to public records while being workable and affordable at the local level. We are continuing these productive (we hope) discussions and know that municipal leaders have also held similar sessions with legislators at local meetings.

Given that the original public records act was written before the Internet, email, police body cameras and digital media, updating the law certainly makes sense. The challenge is making sure that any new legislation is balanced and flexible, and establishes a reasonable framework for communities. A negative outcome would be language that imposes administrative and financial burdens on cash-strapped cities and towns.

We expect that the House and Senate will enact a public records bill before their winter break begins in mid-November. That’s why it is so important to use the coming days to continue talking about the issue with lawmakers.

As currently drafted, the bill is not adequately balanced. The current language would transform the public records law into an unfunded mandate on cities and towns, primarily by reducing fees that can be charged for complex and time-consuming records requests, and by imposing new costs in procurement and additional administrative mandates on communities. The language could also impose unworkable new deadlines to comply with requests, and add a system of enforcement that would expose cities and towns to penalties and the payment of court costs, even when communities have made a good faith effort to comply.

The MMA is asking legislators to make sure that any bill voted in either branch is balanced and fair by including the following protections for local taxpayers:

1. No unfunded mandates. We are asking legislators to make sure any new administrative requirements on communities are minimal. And, critically, we are asking lawmakers to preserve the current ability of cities and towns to be reimbursed a fair and reasonable charge for complying with records requests, particularly the growing number of complex and labor-intensive submissions.

If cities and towns can no longer be adequately reimbursed for the cost of responding to requests, communities will be forced to cut funding from other parts of local budgets or increase their reliance on the property tax. That’s why state law (in Proposition 2½) has placed a ban on new unfunded mandates.

Creating a new unfunded mandate on communities would be against the public interest and would be harmful to other local services. The current law and regulations already provide a process for individuals to appeal to the supervisor of public records if they feel the reimbursement amount is too high. That’s the kind of framework that should stay in place.

2. Enough time to comply. We are asking legislators to make sure that the deadlines for compliance are workable and flexible enough to apply to requests ranging from the simple to the most complex and time-consuming. This is a particularly important concern for small and mid-sized communities that have very little staff capacity.

We live in time of complexity where “one size misfits all.” Stricter and inflexible timelines in the public records act could force small staffs to drop everything else that they are working on, regardless of how important (preparing a bond issue, negotiating a contract, processing payroll, readying for Town Meeting – the list goes on).

Every year, cities and towns respond to thousands of public records requests, and they do a great job nearly 100 percent of the time. Taking away their flexibility with stricter response times could impair lots of other important public duties and services. That’s why maintaining flexibility and balance is important.

3. Fair enforcement. We are asking legislators to make sure that any penalties or provisions for attorney’s fees or court costs are balanced and do not apply when a city or town is making a good faith effort to respond to requests. The current bill would eliminate all judicial discretion in deciding whether court costs should be awarded to a plaintiff, and the bill includes no allowance for courts to require frivolous plaintiffs to reimburse taxpayers for court costs.

In short, these sections need to be balanced and need to allow courts to make a determination on a case-by-case basis. We are also asking legislators to make sure that there is good language to protect cities and towns from the increasing problem of harassing requests.

Cities and towns and municipal leaders fully support transparency and openness in government. In poll after poll, citizens give the highest marks to local officials for transparency and trust, marks far higher than other levels of government.

The overall picture is clear: communities respond to thousands of public records requests every year and have a very positive record of implementing the public records act in a fair and responsive manner, with very few exceptions. Cities and towns will continue to exhibit leadership in this area.

Updating the public records act is a timely issue. We simply ask that the updates be done with care and balance, so that cities and towns can implement the public records act without taking away from their other vitally important public duties and responsibilities.