Governor signs strict public records law update

Gov. Charlie Baker today signed an overhaul of the state’s public records law that imposes strict new rules on cities, towns and state agencies governing timelines to respond to requests for records, how much can be charged to cover costs, and what penalties could be imposed on state and local government agencies.
 
The new rules take effect on Jan. 1, 2017.
 
The law, passed by the Legislature on May 25 after a year of debate, requires cities and towns to review and update local practices for responding to records requests. The state’s supervisor of records, in the secretary of state’s office, is expected to release regulations to guide implementation of the law by late this year.
 
Under the reform law, every city and town is required to designate one or more employees as a “records access officer,” likely the city or town clerk and any other employee appointed by the municipal chief executive officer. The local records officer will be responsible for coordinating and facilitating the response to requests for public records, including helping people identify records being sought.
 
Every city and town will be required to post in the municipal building and on the local website, if any, the name, title and contact information for the municipal records officer(s).
 
Public records will have to be provided in electronic form if originally available in that form.
 
While the MMA has been supportive of an update to the 40-year-old records law, there remain significant concerns about the financial burden the new law will impose on cities and towns and the increased exposure to potentially costly litigation.
 
Timelines
Every local records officer is required to permit inspection or provide a copy of any public record within 10 business days of a request. The request must reasonably describe the record being sought and be for a record within the control of the city or town.
 
The person requesting a record will also be required to pay a reasonable fee. Requests will be allowed by first class mail, email or by hand.
 
If a city or town does not intend to provide the record, or if the request cannot be completed within 10 business days due to the size or complexity of a request (or the receipt of multiple requests), the city or town must notify the requestor within the 10 business day period. The response must include a confirmation of the receipt of the request, identification of any records, categories of records, or any portion of a record that the municipality intends to withhold, accompanied by specific reasons for withholding, identification of any public record that is not in the possession of the local records officer, and identification of the entity that may have the public record, to the extent known.
 
In the case of a request where more time is needed, the response will have to include a detailed statement describing why the “magnitude or difficulty” of a request unduly burdens the municipality and therefore requires additional time, a reasonable time in which the city or town will produce the public records – not to exceed 25 business days from the original request – and an estimate of any fees to be charged to produce the record.
 
The response will also have to include a proposed modification of the scope of a request or an invitation to discuss a modification of the original request and a statement informing the requestor of the right to appeal to the supervisor of records or to superior court.
 
If a request is so large or complex (or numerous, from the same person) that the municipality is unable to comply within the 25 business day period, the city or town may, within 20 business days of receipt of the initial request (or within 10 days of a determination by the supervisor of records that a record is a public record), petition the supervisor for a single 30-business-day extension for “good cause.”
 
When determining proven “good cause,” the supervisor must consider the need to search for, collect, segregate or examine records, the scope of redaction to prevent unlawful disclosure, the capacity of the city or town to comply without the extension, efforts undertaken by the city or town to fulfill the current request and any history of prior requests, whether the request is “frivolous or intended to harass or intimidate,” and if the public interest is served by expeditious disclosure.
 
If the supervisor determines that a request is part of a “series of contemporaneous requests that are frivolous or designed to intimidate or harass” (and not about government activity), then an extension may be granted for a longer period, or the city or town may be relieved of its obligation to comply with a request.
 
Fees
A city or town may charge a “reasonable fee” for a public record that shall not exceed the actual cost of reproducing the record. A city or town may charge the actual cost of a storage device or materials as part of the fee and not more than 5 cents per page for paper copies.
 
A requestor shall not be charged for the first two hours of work performed, except in a city or town with a population of less than 20,000. When allowed, a city or town may charge “for the time to search for, compile, segregate, redact or reproduce the record” that is not more than the hourly rate attributable to the lowest paid employee with the necessary skills to complete the work – capped at $25 per hour unless approved by the supervisor of records. A city or town may only charge for “segregating or redacting” if required by law or approved by the supervisor.
 
A city or town is authorized to charge for “segregating or redacting” or for costs in excess of $25 per hour if the supervisor determines that the charge (1) “represents an actual and good faith representation” by the city or town to comply with the request, (2) is necessary to complete the request, (3) is not designed to deter access, or (4) is for a commercial request intended to generate a profit.
 
No fee will be allowed if the local records officer failed to respond to a requestor within 10 business days.
 
Enforcement
If a city or town fails to respond to a records request or issues a response thought to be in violation of the law, a requestor may appeal to the supervisor of records, who must issue a written determination with 10 business days. Upon a determination that a violation has occurred, the supervisor must take action to ensure compliance. A requestor may appeal a decision of the supervisor to superior court.
 
If a city or town does not comply with an order, the supervisor of records may notify the attorney general’s office, which may take measures to ensure compliance.
 
A requestor may skip the administrative appeal process through the supervisor and file an appeal in superior court at any time to compel compliance and seek an award for damages.
 
In any court appeal by a requestor, there is a statutory presumption that the record being sought is a public record, with the burden placed on the city or town to prove that it is not and should be withheld to protect the privacy of citizens or under other allowable exclusions provided by law. The court has the authority to “enjoin … municipal action” and to award attorney fees and court costs to the requestor.
 
The law includes a statutory presumption in favor of the award of costs except in certain limited circumstances. If the court awards costs, the city or town will be required to waive any fees that would have been charged to comply with the records request. Even when costs are not awarded, the court may still require that the local fee be waived.
 
The new law authorizes the superior court to impose punitive damages of $1,000 to $5,000 if a requestor can demonstrate that a city or town did not act in good faith when withholding or delaying the release of a public record or in assessing an unreasonable fee. In addition, the law allows the attorney general’s office to go to court at any time to ensure compliance with the provisions. If the court then orders a city or town to produce a record, punitive damages may be imposed and the city or town will be forced to waive any fees that would have been charged to comply with the records request.
 
Additional provisions
The new law includes a variety of additional provisions, such as changes to rules governing exclusions from public records relative to owners of firearms and the names and addresses of certain criminal justice and public safety employees, as well as amendments to statutes on storage and custody of records and procurement of electronic record-keeping systems and databases.
 
The new law establishes a study group to review the exemptions that apply to law enforcement. A second commission will study whether the public records law should apply to the Legislature, the governor and the judicial branch, all of whom remain exempt from the law.
 
For the full text of the law, visit https://malegislature.gov/Laws/SessionLaws/Acts/2016/Chapter121.