Records Crisis Deepens In Mass Following Devastating State Ruling
You have five days to agree to give us $22,000, or else …
While this may sound like an extortion note from a B movie, it’s essentially a newly state sanctioned proper response to a public records request in Massachusetts.
Some background …
In reporting a story for the Boston Institute for Nonprofit Journalism last year about the use of Second Generation Coagulant Rodenticides (SGARs) by government agencies, reporter Laura Kiesel made a request to the Boston Housing Authority (BHA) for records from the agency about SGARs use over a period of the last almost 11 years. She was investigating how rodenticides are killing animals way up the food chain, and how “poisons used by Massachusetts municipalities are killing more than just the rats they’re targeting.”
Kiesel made the request on Oct. 21 2021. According to the state’s public records law, the housing authority had 10 business days (plus one extra day granted by the Secretary of State, and perhaps more thanks to another disastrous ruling) to respond to the request. Furthermore, the response must include an itemized list of responsive records and all fees associated with producing those records, while the response must also say if the agency intends to withhold or redact any records along with an explanation of what exemption they are withholding the records under and an explanation of how the exemption applies to the record.
But that’s not what happened.
On Nov. 4, the BHA replied, “If your written agreement to pay is not received by me within 5 business days of this email, we will consider your public records request withdrawn and we will close our files regarding your request.” The letter identified no specific records, nor did it give an indication of how many records would be responsive. The letter did, however, include a blank example of a type of record that the BHA believed would be responsive. The amount the BHA demanded was $9,974.72 for 5 of the 10 years and 10 months worth of records Kiesel requested.
Adjusted for the requested time frame, the demand would be $21,904.87, or enough money to cover the base price of a 2022 Honda Civic.
Importantly, the note from the BHA also explained, “I am writing to notify you that the BHA will require additional time to respond to your PRR due to the magnitude of the request and the associated difficulty relating to the records search and production process (i.e., your request requires BHA to search, compile, and reproduce hundreds of pages of documents from multiple hard-copy folders located at 31 different BHA development offices). Consequently, subject to the further terms of this email, BHA will respond to your PRR by or before November 29, 2021.”
The “further terms” they referred to is the payment demand.
In Massachusetts, agencies that miss the 10 (actually 11) business-day deadline to respond to a records request are legally not allowed to assess fees. This became the basis of Kiesel’s Nov. 5 appeal, in which she argued that the letter from the BHA did not constitute a response to a records request, something that the BHA letter openly acknowledges: “I am writing to notify you that the BHA will require additional time to respond to your PRR… BHA will respond to your PRR by or before November 29, 2021.”
Since the letter was not a lawful response to a records request and the 10 business days had lapsed, Kiesel asked Secretary of State William Galvin’s office to order the BHA to provide the records, free of charge. The law is clear on this, “A records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days.”
Kiesel’s appeal points out that no amount of records are specified, so the large sum of money might yield little to no records. The law is equally clear on this matter as well, in that fees can only be assessed for production of records; if there is a chance that no records would be turned over, the fee should not be allowed: “A records access officer may assess a reasonable fee for the production of a public record …”
In this case, the BHA claimed that filling the request “requires BHA to search, compile, and reproduce hundreds of pages of documents from multiple hard-copy folders located at 31 different BHA development offices.” The BHA letter indicates that the agency did not search the records before sending the Nov. 4 letter, so they did not list a single actually responsive record. Since the search had not been done, the entire $22,000 would be used to search the “hundreds of pages of records” the BHA referred to. It is unknowable how many, if any, responsive records that would yield, or whether those records would be turned over.
On Nov. 8, the BHA took the unusual step of filing what it called an “opposition” to Kiesel’s appeal. There is nothing in the law about agencies filing opposition to appeals. In their opposition, the BHA argues that their letter saying they are going to take almost another month to respond to the request (but only if Kiesel agrees to pay $22,000) was in fact a response. However, in their “opposition” they clarified that the fee was in fact a search fee, and that they were going to ignore the statutory deadline: “On November 4, 2021, BHA notified the Requester by email that it required more time to respond to her PRR and that BHA intended to impose a search time fee.” And later, “BHA’s email stated its intentions to charge a fee to complete its response.”
Since any fee assessed has to be part of the response, their claim that they intend to charge a fee to “complete” their response makes it plainly unlawful.
The agency further argued, “State law does not require BHA to first conduct the records search before imposing a record search fee” By claiming that the law allows them to charge for records before complying with a request. Complying with a request has always previously meant turning over records, and not sending a response because the fee estimate is part of a response. It would be impossible to demand a fee be paid before responding.
The records law requires that a response to a records request must “identify any public records, categories of records, or portions of records that the agency or municipality intends to produce.” Under that law, the agency had a duty to “identify” responsive records, so it’s hard to fathom why an agency would believe they are not required to do a search for the records in order to identify them. The piece of the statute they cite says that they need to make a good faith estimate of “any fees that may be charged to produce the records”—but as they clarified, the fee is not to produce records, it is “to impose a search time fee” to “complete” the response.
Secretary of the Commonwealth William Galvin and his office, which oversees the state’s flimsy records access law, have ruled against Kiesel in her appeal of the BHA’s response to her records request. (Ed. note: This article’s author, Maya Shaffer, assisted in the filing of the appeal.) The ruling sets a dangerous precedent that could effectively end access to public records in Massachusetts. It allows agencies to skip searching for responsive records and to instead simply show a blank copy of a type of record they might turn over. It also allows agencies to charge thousands of dollars to see if, and how many, of those records exist. Requesters can not be expected to gamble thousands of dollars to obtain an unknown quantity of records.
It is hard to construe an agency refusing to search for or identify what records will actually be turned over for a blatantly unlawful fee as “good faith.” Hard, but it turns out, not impossible for Galvin’s office. On Nov. 19, they issued a ruling agreeing that the letter explaining that the agency would not respond for almost an additional month was in fact a timely response: “In its November 4, 2021 response, the Authority provides an example of the responsive records, along with a fee estimate, broken down between ‘small sites’ and ‘large sites.’”
The law requires that a detailed fee estimate be itemized. Splitting the response and fees out by separating the small and large sites doesn’t actually mean anything in terms of the request and is not a separation that the requester asked for. What the law is looking for is an itemized list of responsive records and what they would cost to produce. Creating separate items by subdividing their sites instead of identifying actual records is an end run around the law.
Ultimately Galvin and his office ruled, “Where the Authority received Ms. Kiesel’s request on October 21, 2021, and provided a response on November 4, 2021, within ten business days of receiving the request, I find the Authority may assess a fee to produce responsive records.”
Rulings like this degrade the ability of resquestors to seek legal remedy for records issues as well. The 2016 update to the public records law sought to create more of an opportunity for requesters to obtain relief through the courts by covering some legal fees if a requester wins a records lawsuit. Unfortunately the law cut a massive hole in this by saying that legal fees weren’t guaranteed and shouldn’t be paid if the agency relied on a ruling from the secretary’s office or if it relied on a ruling in a similar case. Thus this terrible ruling can become a barrier for future cases, both in Galvin’s office and in court, if an agency simply follows the blueprint laid out by Galvin and the BHA.
So there you have it. Moving forward the state has ruled that any agency can refuse to search for records until they are paid. Worse, they can just show a blank record and vaguely claim that, for the price of a new Civic, a requester can find out if and how many records actually exist. Paying massive sums of money for unknown amounts of records is not feasible for anyone. This blueprint allows any agency to stonewall any request that comes their way. It is a disaster that threatens to functionally end records access in Massachusetts.
