Public Records Overview

The state's public records law is broken. Thankfully, we have fought hard for reform and two bills H. 3858 and S. 2120 to fix our freedom of information law have passed through the House and Senate, respectively. The issue is now going through conference committee before final legislation makes its way to Gov. Baker's desk for approval.

We believe that final legislation should include reforms that would:

(1) Promote electronic distribution of public records, and make more public documents available online.

  • Providing records in electronic form saves time, money, and paper.
  • If an electronic file contains both public record and exempt information, the public information should be segregated and provided for inspection.
  • Agencies should facilitate public record requests by providing descriptions of their major record-keeping systems.
  • Putting more info online will facilitate access and pre-empt formal requests.

(2) Make records affordable.

  • Access to public information shouldn't be costly. Fees should reflect actual materials costs and limited service fees.
  • Materials fees – for copies, printouts, or electronic storage devices – should not exceed the actual cost of the materials.
  • Administrative fees – for time spent finding, reviewing, and redacting records – should be modest and only applied to time-consuming requests.
  • Individuals shouldn't be saddled with hefty fees to get public information.

(3) Designate "records access officers" in government agencies, streamlining the process and reducing complexity by assigning responsibility for answering requests.

  • Citizens, journalists, and other interested parties should not have to jump through hoops to find someone who can answer their records requests.
  • Responsiveness to public records request should not be delayed by a lack of clarity in an agency about who's job it is to answer.
  • Assigning responsibility for records access will allow that agent to focus on implementing electronic distribution of documents, thereby further increasing accessibility and reducing costs of paper and copying.

(4) Ensure courts award attorney’s fees when agencies block access to public information, giving "teeth" to enforcement.

  • Without a meaningful enforcement mechanism, agencies can deny access to public records without consequences. Attorney’s fees provide incentive for agencies to take the law seriously.
  • Lacking this provision, Massachusetts lags behind the national mainstream.
  • 9 out of 10 states and the federal FOIA law already authorize attorney’s fees when people are wrongly denied access.
  • Many states require courts to award attorney’s fees when a plaintiff prevails; the House bill currently gives discretion to do so while the Senate makes it mandatory.
  • Freedom of information should not depend on having the resources to pay for a lawyer.

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