Shining light on records law

Even with overhaul, new MA law offers delays not found in other NE states

Staff Writer
Published: 3/18/2016 8:02:04 PM

NORTHAMPTON — The state’s public records law is poised to get its first overhaul in more than 40 years with the promise of greater government transparency, but proposals in House and Senate bills suggest access to public records may not get much faster than under the current law.

While both bills require local officials and state government agencies to respond and comply with requests within 10 and 15 days, respectively, they also provide avenues for records custodians to delay the access to records for up to two months or more.

The House bill calls for extensions of up to 60 days for records access for state agencies and 75 days for municipalities. The Senate bill allows for an initial 30-day window to comply with a request and second 30-day extension to comply with records requests upon approval by the state’s supervisor of public records.

No other public records laws among the five other New England states detail such specific and lengthy time frames for complying with public records requests beyond initial response periods, according to a Gazette review of public records laws in New England.

Rather, the majority of the other states require shorter time frames to respond, quicker avenues of appeal, and if they do not specify access deadlines, records be turned over promptly or as quickly as is reasonably possible.

Advocates for public records reform in Massachusetts have expressed concerns about proposed deadlines before a conference committee in the Legislature that may hinder timely access to government records, particularly those outlined in the House bill. The conference committee is holding its sessions in public and meets again Wednesday, March 23.

“What the statutes say and what actually happens are two different things,” Pam Wilmot, executive director of Common Cause Massachusetts, which has advocated for reforms, as have several other organizations. “But it is true that there is literally not another state where you’re looking at 75 day numbers. It’s not an acceptable time frame.”

“One of the things we’re coming up against is how far Massachusetts is behind the rest of the country,” she added. “We have so far to go to catch up.”

Vermont

Vermont has one of the shortest time frames in the country when it comes to responding and complying with public records requests, setting a three-day period for a records custodian to either state that a record is exempt or to produce records for inspection.

A denial of records within those three days can be appealed to the head of the government agency who must then make a determination on any appeal within five business days, meaning the entire appeal process could take as little as eight days.

“The time periods are tight, and they can’t charge exorbitant fees and there are penalties,” said Robert B. Hemley, an attorney in Burlington, Vermont, who has represented the news media on records access issues for more than 40 years in that state. “The whole process shouldn’t take more than a week.”

In “unusual circumstances” time limits may be extended when a written notice is sent to a person requesting records, which states the reasons for the additional time and a date when they can expect a decision. In addition, the extension cannot take more than 10 business days from the date of the initial request, according to Vermont’s law.

Denials of records access must state the names and titles of people responsible for withholding records and cases can head to court rather quickly based on the timetables, though they infrequently do, as the law has become more user-friendly over the years, according to Hemley. The state allows the courts to award plaintiffs attorneys’ fees and other legal costs in cases where they prevail in the courts, which must prioritize cases involving records access.

“What I see is people comply,” Hemley said of his general assessment of the law’s application in Vermont. “In eight days, they have to tell you whether they’re going to give it to you and then you can go to court.”

New Hampshire

Records requests must be responded to within five days in New Hampshire, during which time records must either be made available, or denied in writing with reasons.

All citizens have a right to inspect all nonexempt governmental records during regular business hours of a government department or agency under the state’s Right-to-Know law.

If records custodians needs more than five days to comply with a request, they must explain why in writing when the records can be produced. They also must inform a requester when a search, review and retrieval process is expected to be completed if a government official is not sure whether certain documents exist.

The New Hampshire Supreme Court has ruled that if government records are immediately available, disclosure must be immediate, and if they can be produced within five days, they must be produced within that span. Otherwise, those making records requests must be provided with a written response explaining when they can expect a decision and what, if anything, will be disclosed, according to a state attorney general memorandum on the law in 2015.

“I’ve seen, by and large, compliance with the five-day rule,” William Chapman, a media and First Amendment lawyer in Concord, New Hampshire, said. “Access to public records is important, and it shouldn’t be delayed.”

The avenue of appeal in New Hampshire is in the courts, which award attorneys’ fees and legal costs, with the test being whether the lawsuit was necessary to make public records available. What’s more, if a public employee has acted in bad faith, fees may be awarded personally against that person.

Chapman said if he were tasked with reforming a public records law, he would examine the various kinds of records requests government typically receives and how long they typically take to retrieve and produce.

As for timelines to respond and comply, “I would err on the side of making the period shorter, not longer,” he said. 

Rhode Island

Rhode Island reformed its public records law in 2012, which marked the first major changes to that state’s law in 14 years.

The state’s Access to Public Records Act requires government to respond to records requests within 10 days and if inspection or copying is not permitted within 10 days, a records custodian must explain in writing the need for additional time.

In Rhode Island, the extension of time is an additional 20 business days to comply with a request, if the records holder can demonstrate reasons for needing more time, according to the law. The extension is frequently invoked, said John Marion, executive director of Common Cause Rhode Island.

“The burden isn’t very high with the extension,” Marion said, adding that he believes it makes sense to have a time limit defined in the law regarding time frames for responding to requests and producing records.

“I think Rhode Island has struck a good balance,” Marion said. “We have a reasonable amount of time. It’s two weeks (10 business days), and an extension with a burden that could be higher.”

“I think we’re in a fairly good place with these in our state with having a time limit,” he added.

Appeals are made to the chief administrative officer of public agencies or departments who must decide whether to allow public inspection within 10 days of a petition. Such appeals can receive further review by the state Attorney General’s Office and be adjudicated in court with the awarding of attorneys fees and costs to prevailing plaintiffs, according to the law.

Connecticut

Records requests under Connecticut’s Freedom of Information Act must be responded to in writing within four business days, after which time a failure to respond is deemed a denial.

The law doesn’t set a deadline to produce records for inspection but states the public shall receive records “promptly” upon request.

“That is clearly a matter of interpretation,” Tom Hennick, public education officer at the state’s Freedom of Information Center, which handles appeals of public records access. “We do have a pretty strong law, but there are some gray areas in it.”

The FOIC is a 41-year-old publicly funded agency that runs on an approximately $1.69 million budget with 15 staff and a nine-member commission that decides on public records appeals.

Hennick said the commission in recent years has received about 900 complaints about records access, not all of which end up before a hearing officer. An appeal must be filed with the commission within 30 days of the alleged violation, and the commission can issue civil penalties of between $20 and $1,000, though such fines are rare, he said.

A person can also appeal a ruling by the commission to the courts where court costs and fees can be awarded to prevailing parties.

“Our volume is pretty heavy,” Hennick said. “We are able to settle a lot of them (appeals) before they go to a hearing.”

Hennick said Connecticut has seen its share of frivolous complaints and noted a single person was responsible for filing 200 appeals in 2014 alone. “We really have seen an increase in those and we don’t like it,” he said.

One interesting feature of Connecticut’s public records law is that the public is allowed to copy records for $20 with a hand-held scanner, which is being done increasingly, he said.

Maine

In Maine, public records must be made available “within a reasonable period of time” after a request is made and agencies must acknowledge the request within five working days of receipt, according to that state’s law.

If an agency denies access to a public record, it must provide the reason for its denial in writing within five working days of the request.

In addition, an agency or official must provide a good faith estimate of how long it will take to comply with the request within a reasonable time of receiving the request – and they must make a good faith effort to fully respond within that time frame, according to the law.

Appeals can be filed within 30 days of a written denial in court; attorneys fees and legal costs may be recovered for prevailing plaintiffs if the court determines the refusal to produce records was committed in bad faith. The state’s attorney general and district attorneys also have jurisdiction to enforce the law and seek civil penalties.

Dan Crowley can be reached at dcrowley@gazettenet.com.


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