A “New Way of Doing Business” Under the Public Records Law

by Jonathan M. Albano and Emma D. Hall

Legal Analysis

On June 3, 2016, Governor Baker signed into law House Bill No. 4333, An Act to Improve Public Records (St. 2016, c. 121) (the “Act”). Described by the Governor as a “new way of doing business,” the Act is the first major overhaul of Massachusetts’ Public Records Law since 1973. The new law is intended to improve access to public records, address administrative challenges faced by records custodians (particularly municipalities) responding to expansive public records requests, and promote cooperation between requestors and custodians. Among the most significant new requirements, which will take effect on January 1, 2017, are:

Custodians of public records must designate a “public records access officer.”
Digital records are to be produced whenever available.
New statutory deadlines for responses to requests.
New limits on fees for producing records.
Availability of attorney’s fees and punitive damages.

The new law also requires the Supervisor of Public Records of the Office of the Secretary of the Commonwealth to create forms, guidelines, and reference materials to assist public records requests and responses. Act, § 7, inserting G.L. c. 66, § 1A. The Supervisor’s current regulations are being updated to reflect the new law. (See Proposed 950 CMR 32.00). This article summarizes several significant provisions of the new law.[1]

Impetus for the New Public Records Law

The new Public Records Law was passed on the heels of a report card by the Center of Public Integrity that gave the Commonwealth a D+ for government accountability and transparency. The report found that “routine records, from agency emails to internal datasets, can take weeks or months to obtain from state agencies, at costs running from a few hundred dollars to the not-unheard-of multi-million-dollar bills sent to some requesters.” Critics also complained that the law does not apply to the courts or the legislature, and argued that the statutory exemptions for certain agency records hindered government oversight. Agencies and municipalities, in contrast, expressed concerns about overly burdensome records requests and insufficient personnel and technical support to manage the process efficiently. The new law focuses on administrative and procedural aspects, and leaves largely unchanged the categories of documents and entities subject to the law.

Requirements for Making a Public Records Request

Under the new law, records custodians must respond to a request only if:

the request reasonably describes the public record sought;
the public record is within the possession, custody or control of the agency or municipality that received the request; and
the custodian receives payment of a reasonable fee as set forth in subsection (d).

Act, § 10, amending G.L. c. 66, § 10(a).

Under the old law, a request could be in oral or written form. Written requests were recommended if there was substantial doubt as to whether the records requested were public, or if an appeal was contemplated. See 950 CMR 32.05(3). The Supervisor’s proposed regulations expressly permit oral requests; the new law does not expressly address the issue. See Proposed 950 CMR 32.07(1)(a); Act, § 10, amending G.L. c. 66, § 10(a).

Duties of the Newly-Created Records Access Officer

The new law requires records custodians to designate one or more employees as a “records access officer,” to coordinate responses to and facilitate resolution of requests. See Act, § 9, inserting G.L. c. 66, § 6A. The records access officer must help identify the documents requestors seek; prepare guidelines to enable informed requests about the availability of records; and document all requests, including the request and response dates, the time spent fulfilling each request, fees charged, and details of all appeals. The guidelines must be posted on the custodian’s website and must list the categories of public records that the custodian maintains. Id.

When responding to a public records request, a records access officer must help facilitate resolution of the request, including by:

identifying any public records or categories of public records not within the agency or municipality’s control;
identifying the agency or municipality that may have the requested records;
identifying any records (or portions thereof) that the custodian intends to withhold, and providing the specific reasons for such withholding, including the specific exemption(s) relied upon;
identifying any public records (or portions thereof) that the custodian intends to produce, and, if applicable, providing a detailed explanation of why additional time is required to produce the records; and
suggesting a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably.

Act, § 10, amending G.L. c. 66, § 10(b). Records are to be provided by electronic means when possible, unless the requestor is unable to receive or access the records in a usable electronic form. Act, § 9, inserting G.L. c. 66, § 6A(d).

Agencies—but not municipalities—must provide on their websites searchable electronic copies of many public records such as agency decisions, annual reports, winning bids for public contracts, public meeting notices and minutes, and “information of significant interest that the agency deems appropriate to post.” Act, § 14, inserting G.L. c. 66, § 19(b). These provisions, combined with the detailed record-keeping requirements imposed by the Act concerning the disposition of public records requests, see Act, § 9, inserting G.L. c. 66, § 6A(e), are intended to improve the response process significantly.

New Deadlines for Responding to Public Records Requests

The Act establishes new deadlines within which custodians must respond to public records requests. The new deadlines attempt to balance the interest in timely disclosure of public records with the agencies and municipalities’ administrative interests.

The old version of the Public Records Law contained two related, but not altogether harmonious, provisions concerning the response time for a public records request. Chapter 66, § 10(a) provided that a custodian “shall, at reasonable times and without unreasonable delay” permit the inspection and copying of public records, while § 10(b) specified that a custodian “shall, within ten [calendar] days following receipt of a request for inspection or copy of a public record, comply with such request.” G.L. c. 66, § 10(b); Secretary of the Commonwealth, Division of Public Records, A Guide to the Massachusetts Public Records Law, 1, 6 (2013). The Supreme Judicial Court has interpreted these provisions to mean that custodians must always respond to public records requests “without unreasonable delay,” and that producing a record within ten days is “presumptively reasonable.” Globe Newspaper Company v. Comm’r of Education, 439 Mass. 124, 130-31, 133 n.13 (2003). Thus, under the old version of the law, a delay beyond ten days could be “reasonable” if a custodian demonstrated that the “magnitude or difficulty of the request and the other responsibilities of the agency” prevented it from satisfying the ten-day deadline. Id. at 132 n.12.

The new law takes a different approach: it permits custodians more than ten days to respond to certain types of requests but limits the duration of permissible extensions of time to respond. Section 10(a), as amended, provides that a records access officer shall “at reasonable times and without unreasonable delay permit inspection or furnish a copy of any public record … not later than 10 business days following the receipt of the request.” Act, § 10, amending G.L. c. 66, § 10(a). If the “magnitude or difficulty of the request, or the receipt of multiple requests from the same requestor” makes an agency unable to respond within the ten-day period, the custodian must identify a “reasonable timeframe” for compliance. The outer limits of an agency’s response “shall not exceed 15 business days following the initial receipt of the request for public records,” and a municipality’s response “shall not exceed 25 business days” following the initial receipt of the public records request. Id., amending G.L. c. 66, § 10 (b)(vi).

Further extensions may be granted by the Supervisor of Public Records if the magnitude or difficulty of a request (or the receipt of multiple requests from the same requestor) unduly burdens the agency or municipality and prevents timely compliance. In such cases, the Supervisor may grant an agency a “single extension” not to exceed 20 business days and a municipality a “single extension” not to exceed 30 business days. Act, § 10, amending G.L. c. 66, § 10(c).

The new law does not expressly address two questions likely to be faced by courts. The first is whether a custodian who has not produced documents within the maximum period allowed under the Act is entitled to prove, as under the current law, that there has been no “unreasonable delay” because of the scope of the request and the resources needed to achieve compliance. The answer to that question may turn on whether the specified durations of extensions of time permitted under the Act, including the express reference to the Supervisor of Records’ authority to grant just a “single extension,” supplant potentially more permissive interpretations of the term “without unreasonable delay.” See generally Comm’r of Education, 439 Mass. at 130-31.

The second likely question concerns the use of public records requests by litigants who sue or are sued by the government. Unlike discovery requests, public records requests are not cabined by principles of relevance, nor are custodians permitted to consider a requestor’s motivation in asking for a document. See 950 CMR 32.05 (5). Public records requests by litigants who seek extra-judicial discovery might require courts to determine whether the deadlines established by the Act are subject to modification based on a case-specific application of the “without unreasonable delay” standard. The Supervisor’s Proposed Regulations anticipate this issue by providing that a requestor’s administrative appeal may be denied if “the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation.” Proposed 950 CMR 32.09(j)(1).

Permissible Charges for Public Records

A custodian may assess a reasonable fee for the production of a public record unless the records are freely available for public inspection or unless the custodian failed to respond to the request within the required ten business days. Act, § 10, amending G.L. c. 66, §§ 10(d) and 10(e). The “reasonable fee” is limited to the actual cost of reproducing the record. Id., § 10(d)(i). The actual cost of any storage device or material provided may be included as part of the fee, but the charge for standard black-and-white paper copies or printouts of records cannot exceed 5 cents per page for copies or printouts. Id. Formerly, records custodians could charge between 20 and 50 cents per page, depending on whether the copy was a photocopy, microfilm or microfiche, or computer printout. See 950 CMR 32.06(a), (b), (d).

The new law also permits a custodian to charge for time in excess of four hours spent locating, retrieving, copying and, if necessary, redacting the records. The fee may be charged at an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill to perform the tasks, not to exceed $25 per hour. Act, § 10, amending G.L. c. 66, § 10(d)(ii). Municipalities have additional leeway. Those with populations of less than 20,000 may charge for all such time, while those with populations of more than 20,000 may charge for time in excess of two hours. Agencies and municipalities may seek the Supervisor’s approval to charge more than $25 per hour if (a) the request is for a commercial purpose[2] or (b) the fee was necessary and reasonable to prudently perform the tasks and was not intended to prevent access to public records. Id., amending G.L. c. 66, § 10(d)(iv).

The Recovery of Attorneys’ Fees and Punitive Damages

The new law creates a presumption in favor of awarding attorneys’ fees and costs if the requestor obtains relief either through judicial order or consent decree, or if the agency provides the documents after a complaint is filed against it. See Act, § 10, inserting G.L. c. 66, § 10A(d)(2). There is no presumption in favor of attorneys’ fees in cases where:

the supervisor of records previously ruled in the custodian’s favor;
the custodian “reasonably relied upon a published opinion” by the attorney general or by an appellate court of the Commonwealth that was “based on substantially similar facts”;
the request was “designed to harass or intimidate”; or
the request was “not in the public interest and made for a commercial purpose unrelated to disseminating information to the public about actual or alleged government activity.”

Id.

Under the new law, the Superior Court also may assess punitive damages between $1,000 and $5,000 against a defendant custodian if the custodian did not act in good faith in failing to timely furnish a requested record. Act, § 10, inserting G.L. c. 66, § 10A(d)(4). Any damages will be deposited into the Public Records Assistance Fund and may be used to provide grants to municipalities to foster best practices for increasing access to public records and facilitate compliance with the public records law. Act, § 6, inserting G.L. c. 10, § 35D.

Conclusion

If the amendments achieve their intended purpose, the “new way of doing business” under the Public Records Law should improve communications between requestors and records custodians, increase the number of public records available online, establish enforceable timeframes for producing public records, impose cost controls to reduce excessive fees, and enhance enforcement efforts by allowing attorneys’ fees awards.

[1] Among the provisions of the Act not addressed by this article are (a) the creation of a special legislative commission to “examine the constitutionality and practicality of subjecting the general court, the executive office of the governor and the judicial branch to the public records law” and to issue a report by December 30, 2017, Act, § 20(c); (b) a new exemption for personal emails of public employees, Act, § 4, amending G.L. c. 4, § 7, cl. 26(o) and (p) and Act, § 9, inserting G.L. c. 66, § 6A(c); and (c) a provision expressly applying the Public Records Law to the Massachusetts Bay Transportation Authority Retirement Board but granting the Board an exemption for trade secrets or commercial or financial information that relates to the investment of public trust or retirement funds, Act, 14, inserting G.L. c. 66 §21.

[2] “Commercial purpose” is defined as the “sale or resale of any portion of the public record or the use of information from the public record to advance the requestor’s strategic business interests in a manner that the requestor can reasonably expect to make a profit, and shall not include gathering or reporting news or gathering information to promote citizen oversight or further the understanding of the operation or activities of government or for academic, scientific, journalistic or public research or education.” Act, § 10, inserting G.L. c. 66, § 10(d)(ix).

Jonathan M. Albano is a partner at Morgan Lewis & Bockius LLP.

Emma D. Hall is an associate at Morgan Lewis & Bockius LLP.