Massachusetts Legislature Overhauls Public Records Law

Last week the Massachusetts Legislature adopted significant changes to the Massachusetts Public Records Law. These changes apply to all state agencies and municipalities and in theory are designed to improve the disclosure of public records in the Commonwealth. The Governor signed the bill into law earlier today.

The new law provides, for the first time, strict penalties for agencies and municipalities that do not comply with the various requirements in the new Public Records Law. Supporters of this legislative amendment argued that penalties were required to enforce the law, while critics worry that penalties such as attorney fee awards will incentivize litigation.

The new law will go into effect on January 1, 2017.

Top 10 Changes in the New Public Records Law

1. Attorney’s Fees and Court Costs

• Importantly, the new law establishes a presumption in favor of awarding attorney’s fees and costs to a requestor that obtains relief in Superior Court, except in four specific circumstances: (i) the supervisor of public records finds the agency or municipality did not violate the law; (ii) the agency or municipality based their denial on a published decision of the appellate court or attorney general; (iii) the request was intended to harass or intimidate; (iv) the request was not in the public interest or was made for a commercial purpose unrelated to disseminating information to the public.
• If the court determines that attorney’s fees and costs are not warranted, the court must issue written findings explaining its decision.

2. Punitive Damages

• The court may assess punitive damages in instances where an agency or municipality acted in bad faith of no less than $1,000 with a maximum of $5,000.

3. Records Access Officer

• The new Public Records Law requires that each agency and municipality must designate one or more employees to serve as records access officer. These individuals are responsible for coordinating the response to requests for public records, documenting requests, assisting in preserving public records, and preparing guidelines on making public records requests.

4. Form of Record Request and Response

• The new Public Records Law now allows record requests to be made via e-mail directly to the records access officer. Similarly, responses to a request should be in a searchable, machine-readable, electronic format.

5. Response Time

• Agencies and municipalities must substantively respond to a records request within 10 business days.
• If the municipality or agency cannot produce the record within 10 business days, the records access officer must respond in writing, identifying either the reasoning for withholding the record or a reasonable timeframe in which the agency will produce the record (within 15 business days for agencies or 25 business days for municipalities). If a record request is particularly complex or burdensome, the records officer may seek a further extension of time capped at 20 business days for an agency or 30 business days for a municipality. The law provides exceptions to this timeframe for any requests that are frivolous or designed to intimidate or harass.

6. Assessment of Fees

• Agencies may not charge for the first four (4) hours of employee time spent in responding to a records request; for municipalities, it is the first two (2) hours. After this the agency and municipality may charge a maximum rate of $25 per hour.
• Municipalities, but not agencies, may exceed this rate if the request is for a commercial purpose or the requested fee reflects the actual cost to comply.
• Unless required by law, employee time spent redacting or segregating records may not be charged.
• The cost for copying records, previously set at 50 cents per page, is now 5 cents per page.
• If a records officer fails to respond within 10 business days as required above, no fee may be charged.

7. Exception for Smaller Municipalities

• The law makes a concession to municipalities with less than 20,000 residents: those municipalities may, unlike agencies or larger municipalities, charge a fee for the first two hours of employee time spent to fulfill a public records request.

8. Online Records

• An agency must post electronic copies of particular types of records on its website. These include final agency opinions, annual reports, notices of hearings, winning bids for public contracts, awards of government grants, open meeting minutes, agency budgets, and others. Municipalities shall do the same, “to the extent feasible.”

9. Actions in Superior Court

• An individual requestor or the Massachusetts Attorney General, or both, may file a civil action in Superior Court to enforce the requirements of the Public Records Law. In these cases, the burden is on the agency or municipality to prove that a record was appropriately withheld.

10. Future Expansion of the Public Records Law

• The law also creates a legislative commission to examine expanding the Public Records Law to apply to the Legislature, the Governor’s Office, and the Judicial Branch. The commission’s report will be due by December 30, 2017.

Mintz Levin is working with our clients to analyze current practices and ensure compliance with the new Public Records Law. Future alerts and advisories will provide additional information as it emerges.

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