Over the past year, Massachusetts State Police informed a local attorney it would cost him $2.7 million for public records related to data about the accuracy of breathalyzer tests. And the Bay State Examiner was told by the department they would have to pay a $710.50 fee to get a public records fee estimate, after the news site requested copies of internal affairs files for 49 state troopers.
Massachusetts: Once considered the birthplace of American civil discourse, its government over the past four decades has transformed the state into quite literally, one of the most secretive in the country- recently earning an F grade for public access to information by the Center for Public Integrity.
Two weeks ago, a bill passed through the state’s House of Representatives that would improve the situation and be the first update to the state’s public records laws in 40 years. And while there is hope the bill will be strengthened when it goes before the Senate next month, the current version does not address many of the deficiencies of the state’s broken system and in some cases, makes it worse.
A broken system
Government agencies in the state have the ability to charge reporters, advocates, and citizens massive fees to administer public records requests, which they say, covers the labor and printing costs of fulfilling requests. Often they charge high costs to have lawyers review and make redactions on each requested page and make printed copies of the records, even when the documents are available electronically.
Challenging high fees or public records denials in court can be expensive and can often take years. And filing an appeal with the Secretary of State is largely ineffective, allowing government agencies to push the boundaries when deciding what records should be public and how much it should cost to administer them.
Boston Globe Spotlight Team Investigative Reporter Todd Wallack said he is regularly charged tens- of- thousands or hundreds-of-thousands by Massachusetts government agencies for public records, which many states provide for free. On several occasions he has been flat-out denied records.
“It is all too common when dealing with particular agencies and police departments [in Massachusetts] where I get really high fee estimates that stretch the imagination and look like alternative ways to deny a request,” Wallack said.
In Sept. 2014, Massachusetts State Police said a blogger could not obtain records relating to a 63-year-old murder case because it was still under investigation, even though the suspect was long dead.
And last spring, Wallack filed FOIA requests to the state police and the Middlesex DA’s office asking for the state police report for the 2013 Watertown shootout involving the Boston Marathon bombers. In response, the Middlesex District Attorney’s office held a press conference about the report and posted it on their website. But days later, the state police sent him a letter denying his request.
“How much credibility do they have when that same report is on the web and the DA sent out a press release?” Wallack asked.
The state’s public records law doesn’t apply to the governor’s office, the judicial branch, or the state legislature at all, allowing them to operate in the dark. And the state agencies that are subject to the laws, sometimes take months or years to administer a request.
Recently, the Massachusetts State Police was fittingly named the most secretive publicly-funded government agency in the country, winning the Investigative Reporters and Editor’s prestigious 2015 Golden Padlock Award.
But the secrecy has expanded to police departments across the Commonwealth.
Last spring, Massachusetts Secretary of State William Galvin made a series of rulings that gave police greater power to withhold and censor arrest records. In 2014, former Governor Deval Patrick signed a law that prohibits police departments from releasing reports or logs with information relating to domestic violence and sex crimes.
And NEMLEC, a law enforcement council that coordinates regional police activity and has a SWAT team that deploys armed vehicles and conducts forced-entry raids on Massachusetts homes, have continuously dodged FOIA requests.
Lack of enforcement
Over the years, it has been difficult for journalists to fight public record denials or exuberant charges.
In fact, the state’s Attorney General’s office finally began enforcing the law for the first time in five years last June, months after Maura Healey was elected to the AG post. And in that one case, the AG’s office ordered the Fall River Police Department to lower the fee amount for a request. But the police department was never prosecuted.
Without the state’s help in enforcing the laws, reporters, citizens and advocates have been forced to go to the courts for help, which can be an expensive and time-consuming route.
Massachusetts is one of just three states that does not allow people who were found wrongly denied access to public records to recover attorneys’ fees. And such suits often take years before they are ever heard, Wallack said.
“[Government agencies] recognize if journalists are denied information for a long period of time, that means a story might not get written at all or it may no longer be timely,” Wallack said.
The fight for public records reform
While there is a major push by state lawmakers and advocacy groups to try and open up some of the blinders, such efforts have been met with large resistance from the lobbyist group the Massachusetts Municipal Association, which represents cities and towns across the state.
Two weeks ago, the state’s House of Representatives unanimously approved a public records reform bill that would reduce public records administration costs, require agencies and municipalities to assign a public access officer to handle requests, and allows judges to reimburse attorney fees and litigation costs to requesters who were unlawfully denied public records.
The bill was introduced by state Representative Peter V. Kocot and backed by a coalition of 40 watchdog, civil rights and journalism organizations including the American Civil Liberties Union of Massachusetts, Common Cause Massachusetts and SPJ’s New England pro chapter.
But, as DigBoston thoroughly reports, the bill doesn’t nearly go far enough and in some cases, makes the situation worse.
For instance, the existing law gives agencies 10 days to respond to FOIA requests while the new bill gives state agencies up to 60 days and local agencies up to 75 days, with the option to apply for an extension with the supervisor of records. However, Common Cause Massachusetts Executive Director Pam Wilmot said the courts have ruled that the 10 days isn’t really a hard deadline for agencies to respond to requests.
“Even though there is something on paper, there is no effect,” Wilmot said.
Another issue DigBoston points out, is judges would have discretion over whether to award attorneys’ fees to people who successfully sued agencies over wrongfully denied records. Wilmot said judges would need to produce a written explanation as to why they are withholding attorney’s fees, which she suspects they would prefer not to do unless there was a good reason for it.
And the bill makes it harder to simply file a lawsuit for denied public records requests. As it stands, requesters have an indefinite amount of time to file a lawsuit, whereas in the bill, they would have only 30 days.
The bill would also not make the public records law apply to the governor’s office, the judicial branch, or the state legislature. But, a late amendment to the bill was added that would create a study commission to look at the future inclusion of the three bodies and other ways the legislature can be more open and transparent.
The road ahead
Wilmot said the bill is not perfect, but it is a step in the right direction. She said the Senate is expected to take up the bill in January, which, as a whole is typically more friendly to public records reform. She said she is optimistic the Senate will strengthen the bill.
“The Senate has been consistently more pro-reform in a number of areas and more willing to push the envelope when it comes to transparency,” Wilmot said. “Will it be everything we want? Probably not. But I think it may be close.”
Once approved, the bill would go to a conference committee, which would likely pass some kind of compromise between the Senate and the House bills, she said.
As for Governor Charlie Baker, who would need to sign-off on the final bill, he set public records procedures for state agencies in July, in an effort to improve transparency. But Wilmot said his office is concerned about having strict cost controls for municipalities when administering public records due to existing laws barring the state from mandating municipalities to spend more money without giving them more money.
It’s encouraging that lawmakers are finally taking public records reform seriously. But real reform that addresses all of the issues is needed, not something that gives public officials avenues to avoid having to turn over records that belong to the taxpayers and hardworking journalists. Massachusetts has been governed in the dark for too long. It’s time to pull up the shades and bring in some sunshine.
Danielle McLean is a member of the Society’s Freedom of Information Committee and President of Society’s New England Pro Chapter.