STATE HOUSE, BOSTON, MARCH 30, 2016….Advocates hoping for more public access to state and local government records made their case to an key group of lawmakers Wednesday for affordable fees, timelines for compliance and automatic coverage of attorney costs when plaintiffs gain access to records through lawsuits.
Representatives from the American Civil Liberties Union of Massachusetts, Common Cause and the Massachusetts Newspaper Publishers Association all made their pitch at an open-door meeting of the six-member conference committee developing a final version of the bill.
The three public records advocates reiterated their contention that providing access to public records is a “core” government service, not an “ancillary” function.
The Massachusetts Municipal Association and the Massachusetts Municipal Lawyers Association, representing the local governments tasked with responding to public records requests and their counsel, will make their case to the conference committee on April 13.
Geoff Beckwith, executive director of the municipal association, told the News Service that it is reasonable for local government to be compensated for the cost of providing records and he said the House bill is less likely to impose a financial burden on cities and towns than the Senate bill.
“Emergency response – people pay ambulance fees. Zoning is a core municipal function, and there are permit fees and requirements there,” Beckwith said. He said, “The Senate legislation would clearly, we believe, impose unfunded mandates whereas the House bill’s much less likely to do that.”
Common Cause Executive Director Pam Wilmot said fees in the thousands of dollars have increasingly replaced straightforward denials of public records requests as a means of keeping government documents private. She cited an email the chairman of American Transparency received from the Public Employee Retirement Administration Commission after requesting salary and retirement annuity information.
“While the info we have is incomplete, due to waivers, this one is more difficult to duck. We can charge them, which might dissuade them,” PERAC’s general counsel inadvertently sent the requester, who wrote about the exchange on Forbes.com.
Wilmot said the bill should make clear that government can’t open a “back door” to the proposed restrictions on fees by outsourcing public records work to a private company.
Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, said government agencies can drag out the time before responding so that when documents are eventually provided to a news reporter, they are “moot.”
Ambrogi said the House version of the bill has more complicated procedures for the requester to follow and would allow the deadline for a response to be “extended indefinitely.”
“The number one problem today is lack of accountability,” said Gavi Wolfe, the legislative counsel to the ACLU of Massachusetts, who urged lawmakers to require compensation for attorney’s fees when a plaintiff wins the right to records through the courts.
The advocates also criticized a provision of the House bill establishing a 30-day statute of limitations for plaintiffs to appeal a public records request denial or non-response in the Superior Court.
Members of the conference committee appeared interested in the possibility of distinguishing between private companies that provide a public good, such as newspapers, and companies that are purely profit-driven.
“That’s one of the areas that I think now has sort of piqued our interest,” said Rep. Peter Kocot, the lead House negotiator who said neither the House nor the Senate bill made that specific distinction.
The House and Senate passed their versions of the public records bill (H 3858 / S 2127) in November and February, leaving it to the conference committee to reconcile the two. Conference committees usually vote to close their meetings to the public.
Kocot said lawmakers could potentially use “other vehicles” to address the distinction among commercial requesters of records.