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Shining a Brighter Light on Massachusetts Public Records - House Bill 4333

If, as Justice Louis Brandeis famously said, “sunlight is said to be the best of disinfectants,” Massachusetts public records have just received a substantial splash of bleach. On June 3, 2016, Governor Charlie Baker signed into law the first update to Massachusetts’s public records law since 1973.  The law, as amended, will change how Massachusetts public record requests are made and how state and local governments respond to them. The amendments seek to make government entities more accountable, accessible, and efficient in their management of requests for information, and they include stricter obligations for municipality and agency compliance.

What changed?

The bill mandates that each state agency and municipality delegate at least one employee to be a “records access officer.” The person chosen has primary responsibility for handling public records requests and formulating guidelines, publicly available online, for those looking to access government records. Governmental entities must also offer access to “electronic copies” of a specified list of documents on their websites, including notices of hearings, winning bids for public contracts, minutes of open meetings, agency budgets, and “any public record information of significant interest that the agency deems appropriate to post.”

The bill also imposes a shorter timeframe for responding to a records request and producing public records. While agencies and municipalities still have a 10-day window to produce the requested documents or to respond, the bill sets several additional deadlines that governmental entities must meet to remain in compliance. In the past, compliance with this 10-day requirement was often the exception, rather than the rule. Under the new law, however, if an entity refuses to or cannot produce a record within the 10-day window, it must notify the requestor in writing within that time. If a governmental entity agrees to provide records outside of the 10-day window, it must do so within 15 business days (for agencies) or 25 business days (for municipalities) of the original request. Longer extensions of time may be granted by the supervisor of records only “upon a showing of good cause” by the agency or municipality. These deadlines put a greater onus on the government to act as quickly as possible.

The bill further seeks to substantially limit the fees that governmental entities may charge for collecting and producing public records. Generally, such charges may not exceed “the actual cost of reproducing [a] record.” Additionally, however, entities may not charge more than five cents per page for black and white copies of records, and agencies and municipalities may only charge an hourly rate (limited to $25/hour) if locating and producing the requested records exceeds two hours (for a municipality) or four (for an agency). No fee can be charged if the records access officer does not respond within the 10-day window triggered by the original request. The policy underlying such changes is to make records more accessible to the general public but, in practice, the new requirements may also impose a financial hardship on many governmental entities.

The bill also provides greater accountability and potential financial penalties for noncompliant governmental entities. If a requestor believes a state agency or municipality has violated its legal obligations, he or she “may petition the supervisor of records for a determination as to whether a violation has occurred.” If the requestor is dissatisfied with the supervisor’s determination, he or she may seek judicial review in the Superior Court.  In such a case, the Superior Court has “jurisdiction to enjoin agency or municipal action.” The amended law also creates a presumption that a requestor who “obtains relief through a judicial order, consent decree, or the provision of requested documents after the filing of a complaint” is entitled to recover “reasonable attorney fees and costs.” Agencies and municipalities are also subject to punitive damages ranging from $1,000 to $5,000 for failure to comply with the new requirements.

Finally, the bill establishes two new state bodies to further examine disclosure of specific types of public records. A “working group” will make findings regarding “the public interest in releasing records made and kept by police departments, including arrest records,” and related privacy issues. Additionally, a “special legislative commission [will] examine the accessibility of information concerning the legislative process of the general court and the expansion of the definition of public records.”

When do all of these changes take effect?

Most become effective on January 1, 2017. By July 1, 2017, government entities must post the aforementioned guidelines on their websites. The legislatively created “working group” and “special legislative commission” must deliver their findings to the Massachusetts legislature by December 30, 2017.

While the amendments’ day-to-day impact on government entities and requestors remains to be seen, agencies statewide should be prepared fora significant shift in the manner–and timeframe–in which public records are produced. It is important that all agencies become well-versed in the details of the law to ensure a smooth(er) transition and compliance going forward.

© 2020 Foley & Lardner LLPNational Law Review, Volume VI, Number 159


About this Author

David Y. Bannard, Foley, Boston, Regulatory Compliance Lawyer

David Y. Bannard is a partner and business lawyer with Foley & Lardner LLP. He focuses his practice on representing airports in a wide variety of matters, including regulatory compliance, leasing, rate-setting and concessions agreements, and public finance matters. Mr. Bannard is an experienced bond lawyer, having served as bond counsel to airports and other issuers, and counsel to borrowers and underwriters, as well as in-house issuer’s counsel, in many transactions. He is a member of the firm’s Finance & Financial Institutions, Public Finance, Health Care...

Jason L. Drori, Foley Lardner, Drug industry Lawyer, Pharmaceutical Compliance Attorney
Senior Counsel

Jason Drori is a senior counsel in the Business Litigation & Dispute Resolution Practice of Foley & Lardner LLP. Mr. Drori concentrates his practice on the legal needs, business challenges, and regulatory pressures of the life sciences sector, particularly pharmaceuticals. He represents pharmaceutical companies and other drug industry stakeholders in commercial disputes as well as investigations and enforcement actions by the Department of Justice, federal regulatory agencies, and State Attorneys General. Mr. Drori litigates complex, high-profile cases involving claims of health care fraud, regulatory noncompliance, off-label drug promotion, drug misbranding and unbranded marketing, False Claims Act violations, and unfair competition.