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MA’s broken public records laws targeted by pending reform bill

Jule Pattison-Gordon

Iván Espinoza-Madrigal suspected that a Boston Police Department method of testing for cocaine use among its officers —by examining their hair — produced far more false positives when evaluating blacks’ hair. Espinoza-Madrigal is executive director of Lawyers Committee for Civil Rights and Economic Justice, and his organization is helping plaintiffs make their case. To better understand the implications of the hair test, he wanted to find out how many people had taken the test, how many had failed it and who administered them. He sent a public records request to the police.

And waited.

Weak laws and even weaker enforcement allow public records requests to languish for months, information to be redacted without proper cause and records to be offered only for prohibitively expense fees.

Many like Espinoza-Madrigal are hoping a reform bill now at the House Ways and Means Committee will change all that.

Neglected requests

Espinoza-Madrigal sent his public records request in December 2014. Six months later he sent a follow-up, repeating the query. Almost a year after the original request, he has received no reply to either message.

“The city, by not responding, can effectively deny us access to information that would be highly relevant to this litigation,” he said.

Public records

Any member of the public is supposed to be able to view a variety of state documents under public record laws.

“Public records are about getting the information we need to hold the government responsible. If we don’t have them, we don’t really know what has transpired in our name,” said Pam Wilmot, executive director of Common Cause, a nonpartisan organization focused on government reform.

By many accounts, these laws are broken in Massachusetts. The Center for Public Integrity, a Washington D.C.-based nonprofit news organization, conducted a 2015 State Integrity Investigation. In the category “Public Access to Information,” Massachusetts was ranked as 40th in the nation.

Massachusetts’ public record laws have not been updated since the 1970s, when the idea of putting records online would have been science fiction.

Footing the bill for accountability

In some cases, fulfilling a public records request is as easy as a town administrator forwarding the last meeting’s notes. Other times, the request can entail hours of searching, compiling and reviewing records and redacting personal, sensitive or otherwise protected information.

Currently, these processing fees and records copy costs are passed on to the organization or individual making the request.

The cost can reach $5,000 to $10,000, said Espinoza-Madrigal.

“For small nonprofit organizations, like the Lawyers Committee, paying those kinds of duplication costs and production expense is extraordinarily burdensome and creates a killing effect on our ability to access records,” he said.

In some cases, the fees may be inflated to discourage requesters. The Boston Globe cites an instance in which an attorney requested to see the state police’s database of Breathalyzer test results. Even though he was asking for a digital copy, the attorney was told he would have to pay $2.7 million to cover printing costs and staff fees, an amount later dropped to $1.2 million. Other states had given him similar records for free.

However, Geoff Beckwith, executive director of Massachusetts Municipal Association, said real costs are incurred and someone has to fund them.

If requesters do not pay for the fulfillment of their records requests, that cost is passed on to the local government and from there to taxpayers. This may take the form of increased taxes or reduction in services, as staff put off other tasks to work on request, he said.

“There are a lot of small communities out there with limited or part-time staff,” Beckwith said “A request that will take 20 hours or 30 hours to complete, unless there’s flexibility [on completion deadlines], would essentially force them to drop everything else, and they work on a lot of other duties and services.”

That flexibility now exists, but proposed reforms look to enforce clear timelines.

Attorney’s expenses

In cases where the agency does not respond to or denies a records request for seemingly unreasonable cause, it can be contested in court. But even when requesters win cases, they are responsible for their attorney’s fees. This means individual citizens incur a financial burden for ensuring the law is upheld, said Espinoza-Madrigal.

It also may prevent individuals from taking the matter further.

“[Average citizens] don’t have the money to hire an attorney out-of-pocket to hold the agency accountable to public law,” he said. “The average person is not going to spend the money.”

Only two other states do not provide attorney’s fees, said Wilmot.

Talk of timelines

Espinoza-Madrigal said ignoring requests has become a way of unofficially denying them.

“Many agencies have been ignoring requests that are submitted or delaying access to records for many, many months,” he said.

Meanwhile, Matthew G. Feher, legislative chairman and member of executive committee for the MA Municipal Lawyers Association, said that reform to current laws should avoid too-strict timelines. Not all requests take the same amount of time or labor to fill, he said, so flexibility is needed.

“A one-size fits-all cookie-cutter law is not going to work,” Feher said.

Weak enforcement

There is lengthy precedent for allowing agencies to get away with sloppy compliance with public records law.

“Weakness in enforcement helps agencies like the Boston Police Department keep information hidden away from public view and keep operations in shadows,” said Espinoza-Madrigal.

The attorney general is charged with enforcing public records compliance, if requested to do so by the Supervisor of Public Records.

“That has not happened in my memory,” said Wilmot. “Attorneys general have, at least since 2002, stopped really enforcing the Secretary’s orders.”

She said that there has been some improvement under the current attorney general.

Reform ahead

A bill filed by State Rep. Peter Kockot and State Sen. Jason Lewis this summer contains a host of reforms.

It would restrict the amount charged for filling record requests, impose penalties on agencies that ignore requests and assign attorney fees to local officials for lawsuits they lose. Agencies and municipalities also would have to appoint someone to handle requests and make online copies of records available.

Currently the bill is with the House Ways and Means Committee.

“We’re the cradle of liberty and should be setting an example for the rest of the country rather than falling behind,” said Wilmot.