Last month, Massachusetts Governor Charlie Baker signed into law H.B. 4333, providing significant process overhauls to a law that has not been changed much since 1973, when the law was reworked to more closely match the federal Freedom of Information Act.
Here is what you need to know about the changed law.
On paper, deadlines are slightly longer than they have historically been, but the deadlines now have more oversight, particularly for requests that will take months to complete. The law is updated to make clear that records shall be provided to requesters within 10 business days with a few key exceptions, including if the agency believes:
- The materials are exempt.
- A requester has not paid allowable fees.
- A request is “unduly burdensome.”
- The requester has filed multiple requests with the agency that are “unduly burdensome” taken together.
In these cases, the agency must still respond to the requester, outlining why the materials cannot be provided or why the request must take more than 10 days to process, while outlining a timeframe for release, if applicable. At this point, the new timeframe shall not exceed more than 15 business days for state agencies or 25 business days for municipalities, starting from the date of receipt of the request. An exception is made if the requester voluntarily agrees to a longer timeframe.
Agencies may also include suggestions on how to narrow the scope of the request and must provide a good faith estimate of fees to be assessed.
If an agency cannot provide documents within the 15/25 business day deadline, it can request a further extension, from the Supervisor of Public Records, of up to 20 business days for state agencies or 30 business days for local municipalities.
The Supervisor of Public Records must provide a ruling on this request for an extension within five business days, and in some cases may rule that the agency has an even longer timeline or even does not have to provide the records at all, if the request is part of a series of requests deemed “frivolous or designed to intimidate or harass.”
While many public records laws are relatively ambiguous about electronic responses, the new law makes it clear: Documents “shall” be made available in electronic format unless the record is not available in electronic format or the requester does not have the ability to access responsive documents electronically. Furthermore, electronic documents “shall” be made available in the preferred format of the requester when feasible.
If the documents were previously posted to the agency’s website, the agency may point the requester to the location of the documents.
The law also states that records access officers shall consult with executives in their office to ensure that information systems and databases are capable of providing data in commonly accessible, machine readable formats. The new law states that “No agency or municipality shall enter into a contract for the storage of electronic records containing public records if the contract prevents or unduly restricts the records access officer from providing the public records in accordance with this chapter.”
Previously, agencies had a number of potential charges per page, ranging from 20 cents for photocopies to fifty cents for “computer printouts.” Black and white printouts and copies are now capped at just 5 cents a page.
Fees for request search, compilation, segregation, and other labor are now free for the first four hours at the state level and two hours at the municipal level in jurisdictions with over 20,000 people; they’re capped at $25 per hour unless the Supervisor of Public Records agrees that either the request is for commercial purposes or the request could not be completed by a lower paid employee.
Jurisdictions with fewer than 20,000 people do not have to provide free search time.
However, agencies may not assess any fees if they do not properly respond to the request within 10 business days.
Requesters who have previously failed to pay request fees may be denied from receiving further releases.
If a requester successfully sues over a rejected request, the court may award reasonable attorney’s fees. There is a presumption in favor of the awarding of fees unless:
- The agency had previously received a favorable appeal in the case.
- The agency reasonably relied on published opinion in a similar case.
- The request was designed to intimidate or harass.
- The request was for commercial interests and not in the public interest.
Relatedly, if an agency or municipality is found to have not acted in good faith, a court may add punitive damages of between $1,000 and $5,000, which will be contributed to the Public Records Assistance Fund.
Designated Record Keeper
Under the new law, each agency must designate one or more employees as the agency’s official “records access officer” charged with coordinated responses. They will work not only with requesters on helping identify responsive records, but also assist records custodians with preserving records based on the state’s records retention schedule as well as other applicable laws. They are also charged with publishing guidelines to assist requesters in making more informed requests.
Both these guidelines as well as contact information for the official custodian must be posted to an agency’s website.
Request and appeal logging
Ubiquitous at the federal level, request logging helps agencies manage the records request process and provides another tool for tracking how well (or not) a public records program is working. The new law mandates records access officers start logging requests received, including how much time they take to fulfill, final status of the requests, fees charged, and other key data points.
The Secretary of State will annually collect this information and post it online. Additionally, the Secretary of State’s office will expand its appeal tracking to include other data points, including more detailed information on request timelines, fees, and related court proceedings. The Supervisor of Public Records currently has a website where appeal information is available.
In several places, the updated language adds “cyber security” information to the realm of exempted material, provided that the release of the information “is likely to jeopardize public safety” in the judgement of the record custodian.
Personal Email Addresses
The law specifically exempts the release of personal email addresses of government employees. In practice, these were generally considered exempted already
Public Records Assistance Fund
The bill creates a “Public Records Assistance Fund,” which will be administered by the Massachusetts office of IT and be used to “support the information technology capabilities of municipalities to foster best practices for increasing access to public records.”
Punitive damages assessed against non-compliant agencies will go into the fund, as well as state appropriations and any private gifts or grants.
The new laws and regulations take effect January 1, 2017.