While the 2016 Massachusetts public records overhaul did successfully reform several aspects of the state’s records law, it didn’t address some of the biggest hurdles facing requesters.
Changes were made to fees, attorney fees, and response times to administrative appeal decisions. More specifically, the Supervisor of Public Records, housed in the Office of the Secretary of State, has ten business days to issue a determination on the public status of records. And while a stricter deadline for ruling is an improvement, the new law failed to give the SPR full enforcement authority over those rulings.
“The Supervisor wanted to change the statute to allow her to enforce her own rulings, but they didn’t allow for that change to be included in the new public records reform,” said Debra O’Malley, spokeswoman for the Secretary of State’s Office.
The SPR has the ability to provide accountability within her determinations, but legally, she can’t enforce her own decisions. As far as enforcement authority, not much can be done by the SPR without referring the case to the Attorney General. With another added layer to the process, the post-appeal determination phase can be frustrating, especially for those who won their appeals but are still not getting their records.
Still, O’Malley says that the new deadline for appeals determinations means the office is busy reviewing appeals at a much faster pace. This bodes well for requesters who received a favorable determination. In order to ensure compliance, the SPR’s office has a system where they can follow-up with the requester and records custodian to see if the records have been provided. If not, they continue to follow-up until they are provided. If all else fails, requesters have one last option - a lawsuit.
“Sometimes requester opt to sue because they might be more successful and it’s faster,” said O’Malley.
Despite it being a faster option, the legal process can be expensive. While requester may be awarded attorney fees at the judge’s discretion if they win, and only if the SPR originially determined an agency was unjustly witholding documents. While on the books, non-compliant agencies who refuse to release records theoretically face fines of not less than ten or more than 500 dollars, or even imprisonment, the punishment would still have to be enforced by the AG or thru a court ruling.
(Needless to say, it is highly doubtful that Massachusetts agencies lie awake at night, fearing imprisonment over a public records law violation.)
Although the SPR is the primary enforcer of public records laws within the state, her enforcement to make agencies comply with her determination is slim. It would make sense to have this same entity enforce her own mandates, yet the law limits the SPR’s authority.
O’Malley adds that “changing the statute” would be the only way to allow enforcement to happen. So for now, requesters have to hope agencies comply with the SPR’s determination to hand over records, or face a trip to the courts.