EXPECT DELAYS
It’s been almost three months since the updated public records law took effect in Massachusetts, and it is an important moment to remind readers that we’re still screwed on the transparency front and that Secretary of the Commonwealth William Galvin is still the major roadblock between requesters and records. This is now a state where journalists and the public no longer have the right to see any records made by our government for at least two months after we ask for them. There is no way for any media outlet to reliably provide timely and accurate coverage of innumerable matters as a result, and yet not a single outlet has advised the public that we face this critical two-month lag in accessing records.
I have been away from journalism for the last five months, but I recently got called back into the information conversation by the Society of Professional Journalists (SPJ) and New England First Amendment Coalition (NEFAC). They invited me to be on a panel of experts on the Commonwealth’s public records law to discuss the update and what effects it will have. The panel was interesting, and while I was one of the harshest critics of the updated law, I wasn’t alone in my criticism (as had been the case six months ago).
Before the update, we were the only state where the governor, legislature, and judiciary were all exempt from the public records law. The update did nothing to change this, leaving Mass as the singularly worst state in the nation in this regard. The current law has too many exemptions, and there is no penalty for agencies who routinely abuse exemptions to block or delay access to records improperly.
While the update removed none of the exemptions and added no penalty for abuse, it instead added a new exemption: The old law did not allow agencies to contract out to vendors to store records, but the new law does, raising the potential that a nongovernmental entity could hamper access to records. And while the new law allows legal fees to be awarded in some successful records lawsuits, it doesn’t make awarding these fees mandatory and makes it harder for requesters to recover legal fees when they win cases overturning rulings made by Galvin’s office, which would be the most important type of case to win.
While that is all terrible, it’s small potatoes compared to the new timeline for when requesters can expect to receive the records they requested. The change was heralded as a “Victory!” by the ACLU and similarly celebrated by other advocates of the update a few months ago, but the consensus—at least among the experts on the SPJ/NEFAC panel—appears to have shifted closer to my opinion, namely that the updated timeline has enshrined the failures of the old unenforced law and will now make records access in Mass painfully slow.
In practice, any agency or municipality can lawfully delay complying with a request for at least two months without even receiving an extension from Galvin’s office. Here’s how:
On Business Day 1: The requester submits a request, and the agency or municipality is in receipt of the request.
On Business Day 2: The request counts as being received because the regulations put out by Galvin’s office say that a request is received the business day after the records access officer is in receipt of the request.
On Business Day 11: The response is due, and in order to delay access to the records being sought, any agency can deny the request improperly without consequence. If an agency cites an exemption improperly the requestor can also open an appeal to the denial on business day 11.
On Business Day 21: Galvin’s office must issue a determination on the appeal. Even if the requester wins, the order will give the agency at least 10 more business days to respond (because, as per the regulations, agencies have 10 business days to request an extension after receiving an order from the secretary).
On Business Day 31: The order says the records are due, but instead the agency or municipality can file for an extension. If it files for an extension it will gain five more business days while Galvin’s office deliberates.
On Business Day 36: Galvin’s office must issue a determination on the extension. Even if it rejects the extension and orders the agency to immediately turn over the records, it’s hard to believe it wouldn’t provide at least one day to do so.
On Business Day 37 (or possibly later): The records are due.
The entire first quarter of 2017 has about 60 business days (potentially less due to weather), so 37 business days—even if a requester wins every single step of the way—is effectively two months of delays built into the law. The old law allowed 10 calendar days to provide records, or it was a criminal breach of the law (though the old law was never enforced).
Here’s the gut-punch: As of now, Galvin’s office and Attorney General Maura Healey’s office allow agencies to simply offer new exemptions at the end of the process. A requester can appeal again, but each time around, the cycle adds about another month. We need to put to bed the fiction peddled by the ACLU and Common Cause that the length of time an agency or municipality has to provide records is capped under the update. The fact is that the update makes it easy and legal for agencies to delay for months and leaves it entirely possible that any agency or municipality can lawfully delay providing records indefinitely.
Even this peachy outlook at the updated law is unfortunately too optimistic, because it pretends that the law will actually be enforced and followed. Before the update, the law was not enforced, and nothing in the update changed how or by whom the law would be enforced. Galvin and Healey remain in charge of enforcing the law.
Galvin’s office doesn’t follow the law, so there’s little hope that the attorney general will actually enforce it. Another stipulation of the new law is that every governmental agency must assign a records access officer, and that it must, if it has a website, list the records access office’s name, hours, and contact information. As of now, Galvin’s office has failed to list a records access officer on its website’s contact page. Buried deep in the site, I found this: “Requests for public records should be directed to Valerie Connolly, the Office’s Records Access Officer. The Records Access Officer can be contacted at 617-878-3660 or Sec.RAO@sec.state.ma.us.” No business hours are given.
Healey’s recent track record regarding the records law is not much more heartening. She did bring one lawsuit for records sought by the Boston Globe, but otherwise her office has failed to provide any assistance to journalists, myself included, when orders from Galvin’s officer were sent to her for enforcement. In my case, after nearly a year and a half of sitting unenforced, I shamed Galvin’s office into turning over an order—for the MBTA to provide me with records—to Healey’s office for enforcement. Months later, the MBTA was allowed to send me some of the records and a fresh set of exemptions. Healey’s office made no attempt to even see if I still needed assistance. It took almost two years to get some of what I asked for… and no real help at all.
With this updated law, Mass has cemented its standing as one of the worst states in the country with regards to records access for years to come. Hopefully, by the time that transparency advocates get around to ranking the states this year, they will have seen beyond the ACLU’s victory cry and will rate Mass as the worst in the country.
Before this, the last meaningful update to the Commonwealth’s public information law was about four decades ago… so maybe I’ll still be alive when we get another chance to fix this steaming pile. Until then, remember that when outlets claim they’re keeping news consumers accurately informed about the goings-on in Mass government, it either means that they can tell you what was happening two months ago, or that they’re fake news altogether since they don’t rely on original material.
This article was written in collaboration with the Boston Institute for Nonprofit Journalism.
