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• Senate Ways and Means version would shorten timelines and limit fees
• Full Senate vote scheduled for Feb. 4
The Senate Ways and Means Committee today reported out its own version of legislation to update the state’s public records law (S. 2120).
The Senate bill differs in many important respects from the measure passed in November by the House.
Overall, the Senate bill would impose shorter and stricter timelines, would limit or set conditions on the fees that cities and towns can charge, and would create a more litigious process that would require the courts to award attorneys’ fees to plaintiffs in some circumstances.
“The MMA’s analysis concludes that the Senate’s bill would impose unrealistically short timelines that would be extremely difficult for communities to meet, would limit fees and therefore impose an unfunded mandate on cities and towns, and would expose public entities and taxpayers to threats of expensive litigation,” said MMA Executive Director and CEO Geoff Beckwith.
The full Senate is scheduled to vote on S. 2120 next Thursday, Feb. 4.
The public records law has not seen any material change since it was first enacted in 1974, well before the Internet and electronic communications became the norm.
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 and time from their other important public services and duties on behalf of local residents and taxpayers.
• Download full draft of the Senate’s public records legislation (S. 2120) (97K PDF)
The following are the major provisions of S. 2120:
Timelines
• Once a request is filed, a municipality or state agency would have 15 calendar days to comply and fulfill the request.
• If a municipality or state agency needs additional time OR wants to be reimbursed for the cost of fulfilling the request, the public entity would be required to respond to requesters within 10 days with an explanation of why additional time is necessary, along with detailed fee estimates and a listing of the documents or categories of documents that will or will not be provided. The maximum amount of additional time a public entity could add under this section would be 15 days, for a total of up to 30 days to comply.
• Public entities could appeal to the Supervisor of Records for a one-time extension of 30 days if they can prove they need additional time to comply (maximum of 60 days total). If the supervisor finds that the request is intended to harass or intimidate the public entity, the supervisor could extend the timeline beyond 30 days.
The House-passed bill would allow cities and towns up to 75 days to comply with any public records request, with a process to appeal to the Supervisor of Records for more time if a public records request is too voluminous or broad in scope to complete in 75 days, or if they believe the request has been submitted to harass the municipality or agency.
Fee limitations
• No fees could be charged at any point if a public entity has not responded to the requester within 10 calendar days with detailed fee estimates and a listing of the documents or categories of documents that will or will not be provided.
• Copying charges would be limited to 5 cents per page.
• Cities and towns could be reimbursed for the staff time necessary to comply with a request, although cities and towns could only charge the lowest rate for each employee qualified to search for, collect, segregate, redact and reproduce the requested records, capped at $25 per hour. The first two hours of total employee time spent on the request would have to be provided at no charge.
• Communities could appeal to the Supervisor of Records for permission to charge more than $25 per hour if they can prove that the charge is necessary to prudently complete the request and represents an actual and good faith representation of the cost of compliance. Because the language in S. 2120 refers only to employees, it is unclear if communities could be reimbursed for the cost of outside counsel or vendors.
The fee structure in the House bill would not limit the hourly rate to $25 per hour, instead capping fees at the actual and reasonable cost. The House language specifies that communities could be reimbursed for the necessary cost of vendors or outside counsel.
Enforcement
• Plaintiffs would have unlimited time to initiate action against municipalities and state agencies for noncompliance, to challenge fee amounts, or to challenge whether a requested record could be withheld.
• Courts would be mandated to award attorneys fees and court costs to plaintiffs if the requester has obtained relief through a judicial order or consent decree, unless the public entity was relying on a ruling or advice from the Supervisor of Records or an appellate court ruling, was for a private or commercial interest, or was intended to harass. 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.
• Courts would have the discretion to award attorneys’ fees and court costs to plaintiffs if the municipality or state agency voluntarily complies after the suit is filed.
• Courts could require municipal and state agencies to pay plaintiffs between $1,000 to $5,000 if the court determines that officials did not act in good faith.
• The attorney general would be given enhanced power to enforce the public records act, and courts would be required to assess penalties on municipalities or state agencies of between $1,000 to $5,000 if a judgment initiated by the attorney general is reached against the public entity and the entity did not act in good faith.
The House’s bill 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.
Process
• By July 1, 2016, cities, towns and state agencies would be required to appoint at least one records access officer to assist with all public records requests, to facilitate compliance, to report to the state annually, and to publicize the public records request process.
• If feasible (as determined by the municipal executive), future upgrades to databases and computer systems would need to include enhancements to make it easier to comply with public records requests.
• If the record(s) exist in an electronic format, municipalities and state agencies would be required to provide the record(s) in that format or in a commonly used electronic format if so requested by the person filing the records request.
• The secretary of state would be required to promulgate new regulations on the law by Sept. 1, 2016.
• The changes in timelines, fees, appeals and penalties proposed in S. 2120 would take effect on Oct. 1, 2016, and the requirement to appoint records access officers and publicize the public records process would take effect on July 1, 2016.
The MMA is encouraging local officials to contact their senators to explain how S. 2120 would impact their communities. The important discussion points will be the tighter timelines, limitations on fees, and the more litigious process in the Senate bill.