State Rep. Peter Kocot backs legislation to update Massachusetts Public Record Law



Last modified: Wednesday, May 27, 2015

Advocacy groups, individuals and even the Massachusetts secretary of state blasted the state’s open Public Records Law at a hearing Tuesday, with some saying it had not been substantively changed since it was established in 1973.

Northampton state Rep. Peter V. Kocot led Tuesday’s hearing on a dozen bills related to the law, one of which he co-sponsored.

The hearing lasted more than four hours in a packed room at the Statehouse, Kocot said. Representatives from Common Cause Massachusetts, the American Civil Liberties Union of Massachusetts, the Massachusetts Newspaper Publishers Association and Massachusetts Public Interest Research Group testified about the Public Records Law, along with many individuals, he said.

“Much of the testimony centered on the inability of individuals to access information that one would assume is public and then the high cost of accessing it once you’ve actually figured out who the person was to talk to,” Kocot said.

State agencies have been known to charge thousands or even tens of thousands of dollars for certain records requests, he said. Several agencies declared in testimony to the committee that these costs were an obstruction to transparency, while others testified that there are obstacles and costs to providing documents on the part of cities and towns, Kocot said.

Open-government advocates have long complained that the Massachusetts Public Records Law is too cumbersome and restrictive.

Gavi Wolfe, legislative counsel for the ACLU of Massachusetts, attended the hearing and said that the biggest problem with the law is that it was established without a meaningful way to enforce it.

In 47 states and in the federal government’s public records law, individuals and agencies that sue to get records released and are victorious in court are awarded attorney’s fees by the government, Wolfe said. Only Massachusetts, South Dakota and Wyoming do not award attorney’s fees, he said.

That stands as a disincentive for state agencies to cooperate with the law, according to Wolfe.

“It is hard to explain why we as a state, known as the ‘cradle of liberty,’ are a far cry from those democratic ideals established a long time ago,” Wolfe said.

William Newman, director of the ACLU western Massachusetts legal office in Northampton, said that in addition to awarding attorney’s fees, another important aspect of Kocot’s bill is that it would make records requests affordable.

The law was written at a time when finding paper records and making paper copies was a difficult and potentially expensive process, Newman said. But in today’s digital world, that is no longer true, he added.

The bill would also waive or significantly reduce the charge for public records requests by groups or individuals representing the public interest, Newman said.

“It makes crucial improvements, and if it falls short in some way, we can find out after these open government sunshine proposals are made part of the act,” Newman said.

Wolfe said the bill would also create a state records access office to help people find the records they are seeking.

The issue of records requests being denied in the state has gotten worse and worse, according to Wolfe, who said he believed that is the reason the bill is now being considered.

Not enough teeth

Secretary of State William F. Galvin, the top official responsible for overseeing the Massachusetts Public Records Law, said at Tuesday’s hearing that he is considering pushing for a ballot question to overhaul it, including toughening enforcement of the measure and expanding it to partially include lawmakers.

Galvin said Tuesday that the current law does not have enough teeth and he would like to have someone in the attorney general’s office assigned to handle the cases he refers when state agencies refuse to respond to legitimate records requests.

Galvin said the Public Records Law should be expanded to at least cover contracts and payments made by state lawmakers, who have exempted themselves.

He said he would prefer to work with the Legislature to come up with a bill, but short of that he’s ready to put a question before voters. The deadline to submit a proposed question for the 2016 ballot is Aug. 5.

“If there is no legislative action — which there has not been now for many years — then I think the only alternative would be a ballot question,” Galvin said.

Galvin has been criticized for not enforcing the Public Records Law and for the high fees that some agencies charge to comply with requests.

But Galvin said he has been aggressive in pressuring agencies to respond to records requests — and that he, too, is frustrated when records are not released in a reasonable amount of time.

“We come up against, oftentimes, recalcitrant agencies,” Galvin said. “I could cite many instances where agencies have refused, outright refused, to cooperate, and we’ve had to issue orders, but we didn’t have any effective means of enforcement.”

A spokesman for Attorney General Maura Healey said she is committed to increasing access to public records.

“The attorney general’s office will continue to work with the Legislature and secretary of state’s office to make the commonwealth as transparent as possible,” said spokesman Christopher Loh.

Kocot said increasing the clarity of the law is also important. Representatives from law enforcement, newspaper publishers and state agencies all have different interpretations of the Public Records Law, he said.

“The law has not been clear-cut enough to easily enforce,” he said.

Kocot said he hopes the House will vote on his legislation — House Bill 2772 — sometime in the fall.

“Having faith in government starts with transparency,” he added.

Information from the Associated Press was used in this report.

Dave Eisenstadter can be reached at deisen@gazettenet.com.


 


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