Commonsense updates needed for Massachusetts public records law

Average response time at 76 days, copies don’t cost 50 cents anymore

Written by Shawn Musgrave

MuckRock was proud to testify at the Massachusetts Statehouse on Tuesday in support of amendments to the state public records law, which was written in a pre-Internet era when printing cost 20 cents per page. The proposed amendments will streamline public records requests and incentivize agencies to cut costs.

MuckRock shared a panel with representatives from the New England First Amendment Coalition, the Associated Press and the New England Newspaper and Press Association. The proposed bill, H.B.2846, would amend the Commonwealth’s 40-year-old public records law, which was written in a pre-Internet era when printing cost 20 cents per page.

There are six key provisions to the amendments, all of which win MuckRock’s ringing endorsement. Among other clarifications, the bill would:

  • Require agencies to designate at least one “records access officer.” Agencies will post this person’s name and contact information in a “conspicuous location” at their offices and on websites, and he or she will be responsible for working with requesters to narrow inquiries, as well as for coordinating with the state Supervisor of Records to ensure that records are kept in a sane manner. [For the incredulous: no, this is not already a requirement. You wouldn’t believe how hard it often is to track down who exactly is the appropriate contact for sending FOI requests. Even the state’s Supervisor of Records office claims it doesn’t have a list.]
  • Require agencies to design their information management systems with public records requests in mind. This means allowing quick, easy (and therefore cheap) queries and segregates sensitive information from releasable data proactively.
  • Strengthen electronic releases of records. If a record exists in electronic form, agencies will have to release it in that form upon request. You wouldn’t believe how many boxes of printed emails and spreadsheets we get each week.
  • Wrestle fees out of the pre-Internet age when documents are not available electronically. Under current law, police and fire departments can charge as much as five dollars for the first six pages of a report plus 50 cents per additional page. Other agencies can charge 20 cents per page for photocopies and up to 50 cents per page for computer printouts. The proposed bill would slash that to 5 cents for B&W and 7 cents for color copies and printouts, for all agencies: no baseless exceptions for police and fire departments.
  • Allow requesters who sue for documents to recoup attorney’s fees. Litigation is expensive, and agencies often use this to their advantage. Small media outlets or private citizens do not necessarily have the funds to hire an attorney and fight rejected FOI requests. Granting requester’s attorney’s fees in successful suits will change agencies’ calculus and disincentivize spurious denials.
  • Require agencies to proactively post commonly requested documents. This includes annual reports, final votes, winning contract bids and other documents of “significant public interest” with information that has been the subject of multiple records requests.

MuckRock’s testimony before the Joint Committee on State Administration and Regulatory Oversight, which highlights one egregious example of a Massachusetts records request that has remained unanswered for more than three years. Last week, the agency was helpful enough to tell us that the records are available in electronic format but that it would cost 20 cents per page to print them out for reasons unknown. Massachusetts can do better.

*Good morning. My name is Shawn Musgrave, and I am speaking in support of HB2846. I am part of the investigative team at MuckRock, a Boston­-based web service that makes it easier for journalists, public interest advocates and private citizens to file, track and share Freedom of Information requests at the local, state and federal levels. MuckRock’s investigations and documents released by our requests have been cited by the Boston Globe, the Boston Herald, WGBH, the New England Center for Investigative Reporting, the New York Times, academic researchers and many others. We’re in the trenches of public records requests.

Over the past three years, MuckRock has helped file more than 6,000 requests for government documents, including more than 2,000 requests in the Commonwealth. While we have found many agencies and public employees to be very helpful, courteous and timely in fulfilling those requests, this is much more the exception than the rule.

Here’s an egregious example that proves the point, and one which may sound familiar for those at the 2011 hearings. In our testimony two years ago, MuckRock highlighted a request filed by one of users, a reporter, with the Boston Redevelopment Authority for documents related to one of the BRA’s grants. That request was filed on September 28, 2010, and it remains incomplete to this day. Repeated phone calls and constant emails to the BRA finally resulted in a curt determination last week that “the documents can be provided at 20 cents per page.” Three years delay and an archaic fee, while the entire time the BRA confirmed that it had received our follow­ups and that the documents are available in electronic format.

This is not a cherrypicked instance, unfortunately: stalling, silence and unreasonable costs are typical responses MuckRock comes up against over and over when submitting Freedom of Information requests in Massachusetts. We’ve had agencies tell us they “don’t take records requests,” that they’ve put requests into spam folders for deletion, or that simple data queries will cost tens of thousands of dollars to conduct.

In September 2011, MuckRock testified in support of amendments to the Massachusetts public records laws, based on our repeated difficulties with unresponsive records custodians at the local and state levels alike. In 2011, MuckRock found the average response time for public records requests in Massachusetts to be 34 days. For reference, the allowable time period under Massachusetts law is 10 business days. But as of this morning, two years later, response times have more than doubled: the average wait for a response from state agencies is now 76 days, two and a half months. This average does not even take into account requests for which we have received no answer at all, not even to acknowledge receipt. This is clearly unreasonable.

The people of Massachusetts demand better. The bills before the committee offer real solutions to many of these issues, including the commonsense step of requiring agencies to name records access officers in the first place. You wouldn’t believe how few agencies have even this basic contact information on hand, much less posted online for the public.

The updated fee provisions will finally give agencies the bottom line incentive to lower cost of processing requests, including by designing information management systems that anticipate the need to release information as a matter of course.

Proactive online release of common reports will ease the burden from records officers of individually fulfilling requests for these documents, and requiring them to be in searchable form will bring agency accountability into the 21st century.

HB2846 is a tremendous step in the right direction. It will give agencies the guidance and incentives they need to meet their legal obligations of transparency. It will give citizens, the media and watchdog groups stronger tools to uphold their rights to disclosure. And it will promote public trust that is so critical to effective governance.

Thank you for your time.*

MuckRock strongly supports HB2846, and will continue to follow its progress out of committee. The committee seemed largely receptive to our points and to the bill overall, and several committee members either echoed our findings of unresponsive agencies or expressed their horror that the law is so outdated. With the proper pressure and guidance, Massachusetts could take meaningful steps toward transparency and open government.