October 23, 2018

October 23, 2018

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October 22, 2018

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Massachusetts Governor Baker Approves First Major Overhaul of Public Records Law

Massachusetts has its first significant update of its Public Records Law since the 1970s with promises of swifter responses and real consequences including attorney’s fees for failures to comply. 

In August 2015, we reported on a proposed bill from a joint House-Senate Committee on State Administration and Regulatory Oversight targeted at revamping the Massachusetts Public Records Law, Chapter 66, Section 10. Less than a year later, a somewhat different bill, Bill. H.4333 (An Act to improve public records) was unanimously approved by the House and Senate and signed by Governor Charlie Baker in June.  The bill’s provisions become effective January 1, 2017.

Open records advocates have long bemoaned the lack of transparency, high fees, and untimeliness of Massachusetts agencies and municipalities.  In November 2015, the Center for Public Integrity again issued Massachusetts an “F” grade for public access to information and ranked it 40th in the nation.  But while open government advocates are applauding Bill H.4333 as a step forward in modernizing the state’s Public Records Law, critics remain concerned that the bill’s provisions are too strict and will be expensive and difficult to implement, particularly at the municipal level.  

The bill amends the existing Public Records Law requirements across several categories, including stricter response timeframes, limits on the assessment of fees, and measures for the award of legal fees.  Key provisions include:

  • A 10-day timeframe for responding to public records with documents, with certain limited provisions for requesting extensions.

  • No fees for the first four hours of time spent fulfilling a request.

  • Fees for black and white copies capped at 5 cents per page.  

  • Creation of educational materials, forms, guidelines, and other similar references to assist the public in making public records requests.

  • Designation of “records access officers” by state agencies and municipalities to coordinate and handle responses to public records requests.

  • Delivery of documents in electronic format, where available.

  • Posting of certain categories of public records on agency and municipal websites, including:

    • annual reports,

    • notices of hearings,

    • proposed regulations,

    • open meeting minutes, and

    • awards of government grants.

  • A rebuttable presumption in favor of awarding attorney’s fees and costs to requesters prevented from obtaining public records.  If attorney’s fees are not awarded, the court’s decision must explain why the award was denied.

  • Punitive damages of $1,000-$5,000 may be assessed against agencies and municipalities that unlawfully withhold requested records or fail to timely produce requested records in good faith.  Punitive damages are to be paid into a new Public Records Assistance Fund.

While the new amended law addresses some of the concerns of open records advocates as to timing, fees, judicial relief, and streamlining of procedures, Bill H.4333 stops short of removing the existing exemptions that limit the applicability of the Public Records Law to the judicial and legislative branches.  Instead, a special legislative commission would be organized to study the accessibility of information on the practices and procedures of the legislative process and the constitutionality and practicality of applying the Public Records Law to the legislature, Governor’s Office, and the judicial branch.  The special legislative commission is required to prepare a report by December 30, 2017 with recommendations on expanding and reforming the Public Records Law as it relates to the various branches of government. Thus, there may be continued efforts to expand and revamp open access to a broader swathe of government records.

© 2018 Beveridge & Diamond PC

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About this Author

Marc J. Goldstein, Environmental Attorney, Beveridge Diamond law firm
Principal

Marc Goldstein helps clients resolve environmental and land use disputes and to develop residential, commercial, and industrial projects.  He serves as the Managing Principal of Beveridge & Diamond’s Wellesley, Massachusetts office.

781-416-5715
Brook J. Detterman, Beveridge Diamond, Climate Change Lawyer, Liabilities Law
Associate

Brook Detterman's practice focuses on climate change, renewable energy, and environmental litigation.

Brook helps his clients to negotiate, structure, and implement transactions related to climate change and environmental commodities markets.  He regularly counsels clients during transactions under the EU ETS, California’s cap and trade program (AB 32), and other U.S. and international emissions trading programs. Brook also supports clients in the renewable energy industry, providing advice on renewable energy policies, regulations, and incentive programs and counseling clients on the environmental aspects of renewable energy projects and transactions.  Brook’s experience also includes complex environmental litigation, and he has served as litigation and appellate counsel during dozens of proceedings in state and federal courts across the country.

Brook's climate change and renewable energy experience includes:

  • Providing advice to a broad range of clients on state and federal renewable energy policies, incentives, and regulations.
  • Advising clients during the structuring and development of numerous carbon offset and renewable energy projects and transactions, including U.S. forest offset projects, hydroelectric projects under the Clean Development Mechanism, domestic landfill gas-to-energy development, and a novel trans-border carbon offset generation project involving CFC destruction.
  • Representing Native American tribes and corporations during the development of large carbon offset projects on tribal forest lands.
  • Drafting model renewable portfolio standards.
  • Developing regulatory guidance and strategy for over 30 energy companies on a wide range of environmental issues, including state and federal greenhouse gas regulations.
  • Counseling clients on carbon accounting, social cost of carbon metrics, and climate risk disclosure.

Prior to joining the firm, Brook was an associate in the environmental department of a large international law firm.

Brook served as a law clerk at the U.S. Department of Justice, Environment and Natural Resources Division, where he worked on a range of legal issues arising under federal environmental law, including CWA wetlands jurisdiction, CERCLA liability, RCRA compliance, and NEPA requirements. Brook was Associate Editor of the Lewis & Clark Law School Environmental Law Review and served on the Moot Court Honor Board.  At Dartmouth College, Brook worked as a teaching assistant in Environmental Studies Department, and as a research assistant in the Biology Department.

(781) 416-5745
Virginie K Roveillo Environmental Litigation Attorney Beveridge Diamond Law Firm
Associate

Virginie Roveillo divides her practice between environmental litigation and regulatory matters. Prior to joining Beveridge & Diamond, Virginie was a Graduate Fellow at the Conservation Law Center in Bloomington, Indiana.

781-416-5726