Alliance Lauds AG’s Enforcement of Public Records Law as Important First Step

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Open Government Groups Call for Legislative Reform to Fix Underlying Problems

BOSTON — June 12, 2015 — The Massachusetts Freedom of Information Alliance (MassFOIA), a network of more than 40 groups committed to reforming the state public records law, today applauded the first enforcement of the law in five years by the Attorney General’s office. 
The Boston Globe reported on Friday that attorney general Maura Healey intervened with the Fall River Police Department after the Secretary of State’s office determined the Department was overcharging a journalist for documents.  The police department ultimately reduced the fee.  This enforcement action was seen as significant because state officials had all but stopped enforcing the law during a rift between Secretary of State William Galvin and former attorney general Martha Coakley.
MassFOIA commended the attorney general’s action and simultaneously called for legislative action to reform a public records law that is widely regarded as one of the weakest in the nation.  The alliance noted its appreciation for the statement in the Globe of a Healey spokeswoman that Healey also believes the public records law needs to be “updated to include real teeth to ensure public agencies comply with the law” going forward.  
 “This is a very good step,” said Justin Silverman, executive director of the New England First Amendment Coalition.  “We applaud attorney general Healey for recognizing the need for enforcement when agencies charge unreasonable fees for public information.  We hope the legislature will also act to improve access for ordinary Massachusetts residents.”
“This action sends an important signal that the attorney general is paying attention, but the public records crisis in Massachusetts cannot be fixed by occasional actions by one office alone,” said Gavi Wolfe, legislative counsel at the ACLU of Massachusetts.  “It takes more than whack-a-mole enforcement to guarantee freedom of information for the public.  We need lawmakers to provide real incentives for agencies to follow the law in the first place.”
“The outmoded public records law is repeatedly thwarting the news media in their efforts to cover state and local government activities,” said Robert J. Ambrogi, executive director of the Massachusetts Newspaper Publishers Association. “The public has a right to know what their government officials are doing, but outrageous fee demands and lack of accountability frequently obstruct that right.”
“The Attorney General’s action is a step in the right direction but we also need legislation to fix the law itself,” said Pam Wilmot, executive director of Common Cause Massachusetts.  “Allowing courts to award attorneys’ fees is the most efficient way to create an incentive for people to abide by the law and to provide a remedy when rights are violated. It’s shocking that 47 states have this kind of provision – as does the federal FOIA law – and Massachusetts doesn’t. As the cradle of liberty, Massachusetts should lead the way, not lag behind the rest of the country,” said Wilmot.
The state public records law is supposed to grant the public the right to access information about government operations from the executive branch and municipalities, subject to certain exemptions, such as to protect personal privacy. MassFOIA contends that the law is weak and needs updating for the digital age, having not been substantially amended since 1973.
Rep. Peter Kocot (D-Northampton) and Sen. Jason M. Lewis (D-Winchester) filed bills in both the House (H. 2772) and Senate (S. 1676) that aim to reform the public records law by eliminating technological and administrative barriers to its enforcement. Key provisions would update the law to reflect advances in technology, require state agencies to have a “point person” to handle records requests, rationalize fees for obtaining public records by having them reflect actual costs, and provide attorneys’ fees when agencies unlawfully block access to public information. 
According to MassFOIA, the proposed legislation aims to improve access to information that the law already defines as a public record.  It would not alter the scope of the public records law or make any changes to existing exemptions, which include exemptions for personal privacy, criminal investigations, personnel records, trade secrets, and many other categories. Rather it would modernize outmoded language in the law and strengthen procedures for compliance and enforcement.
Specifically, the legislation would:

  • Promote access to records in electronic form.
  • Direct agencies to assign a “records access officer” to streamline responses to public records requests.
  • Lower costs for requesters and limit charges for redacting documents to withhold information.
  • Require attorneys’ fees when access to public records is wrongly denied, creating an incentive for agencies to obey the law.

Gavi Wolfe, Legislative Counsel
American Civil Liberties Union of Massachusetts
(617) 482-3170 x340;
Robert J. Ambrogi, Executive Director
Massachusetts Newspaper Publishers Association
(978) 546-3400;
Justin Silverman, Executive Director
New England First Amendment Coalition
(774) 244-2365;
Pam Wilmot, Executive Director
Common Cause Massachusetts
(617) 962-0034;