STATE HOUSE, BOSTON, FEB. 4, 2016…..Acknowledging that the current decades old law has been rendered ineffective by advances in technology, the Massachusetts Senate on Thursday passed a public records reform bill updating the law governing access to public documents for the first time roughly 40 years.
By a unanimous vote, the bill (S 2120) that supporters said would strengthen access to state and municipal records cleared the Legislature’s upper chamber after debate on dozens of amendments.
“It’s been 40 years since the Legislature has taken meaningful action on public records. But today we access information much differently than we did back then,” Sen. Joan Lovely said. “This bill embraces modern technology and encourages electronic postings to connect people with the information they are looking for more efficiently.”
The Senate’s bill would require each state agency or municipality to assign one employee as the supervisor of public records to serve as the point person for records requests and responses.
It also seeks to reduce costs for records requestors by limiting the amount that public offices can charge for producing the records at 5 cents per copied page. Municipalities would be required to provide two man hours of work and state agencies four man hours before they could charge a maximum of $25 an hour for time spent fulfilling a records request.
The bill would also bring Massachusetts in alignment with 47 other states and the federal government in allowing attorney’s fees to be awarded to plaintiffs who successfully challenge a denial of records, except in certain situations.
Sen. Jason Lewis, the original Senate sponsor of the bill, said the allowance of attorney’s fees is critical because it will dissuade the custodians of records from knowingly withholding public information.
“I would argue that is the most important part of the bill,” he said on the Senate floor. “It will finally put some teeth in the enforcement of our public records law and it will bring the commonwealth in line with virtually every other state with how this practice is handled.”
Open government advocates have praised the enforcement mechanisms contained in the Senate bill, which they identified as key differences from the House version of the legislation.
“The whole enforcement process, the House is very complicated, requiring going to the supervisor first,” Common Cause Massachusetts executive director Pam Wilmot said. “This bill, you can go straight to court. It’s easily read and understood, and I think that’s really critical to the public to be able to understand the law.”
There is little disagreement that the state’s public records law is in need of an update, and, where opposition does exist, it focuses largely on the costs that could be imposed upon offices tasked with fulfilling records requests.
“We hope legislation does pass this year so that the questions regarding modernizing the act can be resolved,” Geoffrey Beckwith, executive director of the Massachusetts Municipal Association, said. “For most communities, the biggest concern is regarding making sure the dictates in the law, the parameters of the new law, are feasible to be implemented by smaller offices like a town or small city or a regional school district.”
The Senate’s bill, Beckwith said, establishes unrealistic timelines for compliance and creates an unfunded mandate on municipalities because it limits how much a city or town can recoup in fees rather than allowing it to charge for the full cost of complying with the request.
Generally, the MMA prefers the public records reform bill (H 3858) passed by the House in November, Beckwith said.
Differences between the House and Senate bills will likely be hashed out by lawmakers from both branches in a conference committee.
“We are hopeful the legislation will be moderated and follow the general parameters of enforcement that are in the House bill,” Beckwith said. “We have been encouraging and advocating for legislation that can be implemented at the local level without draining resources away from other tasks, and we are confident that good, strong legislation can be enacted.”
The American Civil Liberties Union of Massachusetts, though, said it prefers the Senate version of the reforms, and hopes many of its provisions prevail in conference.
“It’s a really strong bill,” said Carol Rose, executive director of ACLU Massachusetts. “We’re very pleased. We hope when we do go to conference, it will stay strong. We’re confident that it will stay strong.”
Senators said they took steps in drafting and amending the bill to allay the concerns of municipalities, particularly smaller towns.
“This isn’t about trying to be a problem to the cities and towns,” Senate President Stanley Rosenberg told reporters. “It’s about giving people access to the information to which they’re entitled, and we need to work together — state and local government with the citizenry — to make sure they have timely access at a reasonable cost.”
The bill sets aside certain penalties paid by the government for a fund that will support information technology improvements and other upgrades to help communities comply with the law.
An amendment filed by Sen. Anne Gobi would allow small municipalities to seek extensions based on their normal business hours. Gobi, a Spencer Democrat, said that some town halls in her district are only open a few hours a week and may have a harder time meeting deadlines.
Sen. Michael Barrett proposed an amendment — which was ultimately adopted — that will make Division of Insurance records related to homeowners insurance rate filings public records at the time that they are filed rather than at the time they take effect, and requires that they be posted online within three days of being filed.
During debate on the amendment, Barrett said that making rate filings public before they take effect is “pro-transparency,” is in line with auto insurance practices and will give consumers the ability to weigh in on the requested rates. Barrett had filed four other amendments on the subject of homeowners insurance, but withdrew them prior to consideration.
After a bipartisan push, the Senate also adopted an amendment placing the MBTA retirement board under the umbrella of the public records law.
“Although this seems unrelated to some of the provisions of the bill, I would suggest…that there is nothing more important in this bill than this amendment in terms of regaining public trust in the T and in government generally,” said Sen. Mark Montigny, a New Bedford Democrat who sponsored the amendment along with Minority Leader Bruce Tarr of Gloucester. “It’s horrifying that this information is considered private information.”
Tarr said that opening up the MBTA retirement board to public access would allow for a better understanding of concerns like a growing unfunded pension liability and make it easier to see if there’s cause for the Legislature to intervene.
Tarr also sought to add in a provision requiring the MBTA to post signs in each station and terminal breaking down how much money it receives from various funding sources. The amendment was rejected after Ways and Means Chairwoman Karen Spilka argued that the signs would replicate information posted online, need frequent updates or replacements and likely be ignored by riders.
Some of the more animated debate of the day came when Tarr sought an amendment that would have required gas stations to “include a sign that displays the itemization of all taxes included in the price of motor fuel shown on the sign.”
Rosenberg declared Tarr’s amendment beyond the scope of the bill and ruled that it would be laid aside. The price of gasoline is posted by a private entity and, therefore, is not a public record, he said.
Tarr argued that the gas tax rate was a matter of public record and therefore was well within the scope of the bill. After lengthy debate on the subject, the Senate voted 31-5 along party lines to uphold Rosenberg’s ruling and lay Tarr’s amendment aside.
Copyright 2016 State House News Service