Over the next week, leading right up to the Massachusetts Legislature’s August recess, we’re publishing a piece every day in a blog series highlighting “fast facts” about the failings of our state’s public records law. It is our hope to keep the story focused on why action needs to be taken as soon as possible and to urge a vote on Bill H. 3665, an act to improve public records, in both the State House of Representatives and Senate before they leave Beacon Hill for a month. To read the full series and more from this campaign, go here. To petition your legislator in support, act here!
Here is “Fast Fact” #3:
Perhaps the most important reform our public records law needs is giving it “teeth” and an effective enforcement mechanism to ensure agencies actually comply with requests. In the federal Freedom of Information Act and 47 states, this is done by allowing court’s to award attorneys’ fees - ordering defendants pay a plaintiff’s legal fees when that plaintiff “substantially prevails” in a lawsuit after being denied rightful public records.
Massachusetts is one of ONLY THREE states in the U.S. that do not allow courts to award attorneys’ fees. We are joined by South Dakota and Wyoming.
As a result, there is almost no penalty for agencies that simply ignore or deny lawful public records requests, and there is no easy recourse for those seeking, but not allowed, access to information about what government is doing. A concerned citizen who is denied access to public records can sue, but the legal battle will often be prohibitively expensive and could take years even if they can pay. By the time a lawsuit is over, the information they sought can become less relevant, while they receive a massive fiscal setback for their activism.
If we allow attorneys’ fees to be awarded when records requesters “substantially prevail” in a case, not only can they sue for access without fear of going bankrupt, but agencies are incentivized to comply in the first place in order to avoid a costly legal battle they will be potentially required to pay for.
To be clear, the payment of attorneys’ fees would only occur when agencies are found by a court to have violated the law and not complied, or at least made a reasonable attempt to comply, with a legitimate public records requests. If they answer the records request properly, they need never fear this scenario.