BOSTON >> Cities and towns face new, complex and potentially expensive changes in the way they handle public records requests under a bill signed into law by Governor Baker this summer.
The new law, the first overhaul of Massachusetts' public information statutes in decades, has major ramifications for municipal officials, who need to be ready by Jan. 1 to implement the statute.
The ground rules for answering requests from the public, including the media, have changed. For many cities and towns, the result could mean far more resources dedicated to responding to requests for documents ranging from emails to contracts to financial information. It is therefore important to understand these changes, since the administrative burdens and costs of complying with the new law could ultimately impact tax rates and even delivery of municipal services.
The nuts and bolts of responding to public records request have been dramatically altered by the new law, particularly with respect to the timing and costs for responding to a public records request. The changes will affect nearly every facet of municipal interaction with document seekers ranging from who is responsible for responding to requests to the amount of time they will have to deliver the records. The complicated web of new procedures, deadlines, and appeals will be challenging at the local level. It will also be challenging at the state level, where the Public Records Division will have an expanded role.
Importantly, failure to comply with the new law could also end up being very expensive, which raises additional, perhaps unintentional, repercussions for municipal officials and taxpayers.
Today, many municipal records requests are handled locally without incident. In the small number of instances in which a requester is dissatisfied with the response to a public records request, they typically file an appeal with the supervisor of public records. A limited number of disputes are resolved through litigation, most frequently in the context of other claims.
Fees for attorneys
However, the revised law establishes a presumption that a person who is successful in litigation over public records, even in part, is entitled to attorneys fees. Award of attorneys' fees is typically reserved for only the most egregious conduct, and this provision of the new law also reverses the presumption that public officials act in good faith.
The change in the law is intended to force fast and complete compliance with public records requests. However, the new law may also result in a higher incidence of litigation over public records. Moreover, to avoid the potential for costly litigation, municipal officials may simply disclose information that would otherwise be exempt, including private, personal information or information that would negatively impact a municipality's litigation, bargaining or negotiating position.
Ultimately, the costs of defending any action taken in regard to a municipal public records request, and any award of attorneys fees, will be paid from funds raised through local taxation, placing a burden on all taxpayers of the municipality.
As has been reported, changes to the Public Records Law have been long-sought by newspaper associations and government watchdog groups. The version signed into law by Gov. Baker may not be the end — one provision of the new law establishes a commission to continue to evaluate access to public records.
Public records are vital to government transparency and this new law protects access for residents. As with any significant change, however, transition can be difficult. The law could potentially lead to significantly increased costs for municipalities, and therefore, to the taxpayers. It will be important for cities and towns to start planning now so that they can best meet the new requirements of the Public Records Law.
Lauren Goldberg is managing partner at KP Law, P.C., a law firm representing approximately one-third of the municipalities in Massachusetts. It has offices in Boston, Worcester, Northampton and Lenox.