March 14, 2017

Sunshine and Open Records

The weather forecast may not reflect it, but it’s national Sunshine Week. It’s an annual effort by the American Society of News Editors and the Reporters Committee for Freedom of the Press to urge open records and government transparency. It’s also a reminder that Massachusetts has a new open records law. The new statute went into effect January 1 – amending one of the weakest such laws in the country.

Key elements:

  • Agencies now have 10 business days to respond initially to records requests and specified time frames for responding in substance. It actually gives officials more time to turn over records.
  • There are limits on copying fees. It used to be 50 cents a page. Now it’s a nickel.
  • Records must be available in electronic format when possible.
  • Judges can award legal fees in cases that go to court. In fact, “there shall be a presumption” that filers can recover legal fees.

So, how’s the new law working? Justin Silverman, Executive Director of the New England First Amendment Coalition, says it’s too soon to get a good read, but he likes the changes. “There’s clearly more work to do, but the new law is a big step in the right direction – especially considering where we started.”

A weakness in the old law was carried over into the new one. While the statute does apply to Executive Department agencies, the Governor’s office itself is exempt. The Legislature and Judiciary are exempt, too. Silverman calls that “very unusual compared to other states.” The new law creates a commission to consider extending the law’s reach to those branches of government. Its report is due at the end of the year.

Some things to watch: Will record custodians actually turn over data in a timely and affordable manner? Will more cases go to court? And if so, will judges grant document seekers legal fees? Watch the open records weather. Will it be sunshine or clouds?

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by RD Sahl, Denterlein Senior Advisor

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