, Salem, MA

October 23, 2013

Our view: Public records laws need reform

The Salem News

---- — Massachusetts has a well-deserved reputation as the birthplace of American democracy. Sadly, however, the state and its legislators have not done enough to ensure complete and timely access to the public records that show citizens how that democracy works — or doesn’t work.

Public documents are where the story of a community’s civic life is recorded for everyone to see: What does the plan for that shopping mall down the street look like, and who is suing to stop its construction? Who has been arrested near my child’s school, and with what crimes were they charged? How much are we paying in pension costs for that “retired” school superintendent who took a job in another state?

Too often, however, the answers to these questions are difficult and costly to find in Massachusetts, which trails other states in access to public records.

“I’ve long been puzzled and somewhat embarrassed, frankly, that Massachusetts lags behind so many other states in the strength of our public records laws and enforcement of them,” Robert Bertsche, general counsel to the New England Newspaper and Press Association, said last week.

Bertsche was testifying before the Legislature’s Joint Committee on State Administration and Regulatory Oversight, which has before it several bills aimed at making records more readily available to the public.

It’s not just an important subject for the press; it’s an individual issue as well — several key issues that directly affect citizens’ access to the workings of their government were discussed.

A bill by House Chairman Peter Kocot, for example, would cut costs for people seeking copies of public records.

This is a sorely needed update. As the State House News Service noted in a story last week, “While computer technology has allowed individuals to call up information with their fingertips, people seeking public records are often given piles of printouts and a bill for 20 cents a sheet, if the agency approves the request. State courts routinely charge $1 per page.”

Another favorite practice of government organizations hoping to keep public records secret is to threaten to charge by the hour — often at overtime rates — for a documents search. This can lead to bills of hundreds of dollars for routine records requests, which has an often-intended chilling effect on the search for information.

Kocot’s proposal, backed by several media and good-government groups, would require state agencies to name a public access officer, cap the cost of copy pages at 7 cents and require that electronic copies of the documents be provided when possible. Gone are the days where clerks had to root through dark rows of shelves, sorting through dusty files before duplicating the requested information on a rickety copier. Much of the information can be sent through email or shared with a thumb drive.

Just as important is ensuring citizens have access to documents pertaining to all levels and branches of government. The Legislature, for example, exempts itself from the public records law, a practice also followed by Gov. Deval Patrick’s office. Kocot’s bill would set up a commission to consider changing the practice. A separate bill would exempt disciplinary investigations in police departments, along with 911 emergency recordings. This would be a considerable mistake, depriving citizens of a full, open and honest accounting of how well those charged with keeping us safe are doing their jobs.

Much of the difficulty in getting access to public records stems from a lack of accountability for the government officials required to provide them; breaking access laws bring little more than a wag of the finger.

Sean Musgrave, Muck Rock projects editor, testified last week that the average response time for one of his groups’ public records requests is 76 days — almost eight times the 10-day deadline set by law.

“I’m in the trenches every day filing these requests, and mostly getting denied or not answered at all,” Musgrave said, adding that many of his group’s requests are simply “put into spam folders for deletion.”

Kocot’s bill would allow those who sue for access to public records to seek attorney’s fees if they win their case, which could force those in charge of documents to take requests more seriously. That’s a good idea.

It’s easy to dismiss the dispute over access to public records as an argument between elected officials and the media. Public documents, however, are open to anyone, regardless of profession or politics. They are the bread and butter of government, and they need to be available to its citizenry.