Boston Globe: Public records law subverted by high fees

When Globe reporter Todd Wallack requested an electronic copy of State Police logs stretching back nearly 10 years, he eventually received a lengthy reply and a hefty price tag. He could have the records for $20,625 — the cost, the staff counsel of the State Police explained, to locate and print or download the 3,000 logs, which are kept in a database, and to assign someone to spend an estimated 625 hours reviewing the records before they would be released.

There, in a nutshell, is the sorry state of Massachusetts public records law. By law, police logs must be made available without charge. Yet the State Police argue that that rule is trumped by a separate statute — the public records law — to justify charging thousands of dollars of fees for search and redaction that would normally not be allowed. In other words, bureaucrats are interpreting the law in the most prohibitive way possible, setting up roadblocks by asking for exorbitant fees. The result is the polar opposite of a transparent democracy: an extreme lack of access to the very records the media, nonprofit organizations, watchdog groups, and the public are legally entitled to under the public records law.

Massachusetts legislators, recognizing the general lack of cooperation and periodic abuse of the law, have filed several bills to reduce the cost of public records. (The Legislature is scheduled to hold a public hearing on the various bills on Tuesday.) Perhaps the most comprehensive are bills filed by state Representative Peter Kocot and state Senator Jason Lewis: Among other things, the proposals ensure that public agencies would designate a records access officer, whose sole job would be to streamline public records requests. The bills would also require electronic records to be provided digitally and in a searchable format, and would cap charges so as not to inhibit access. The bills would still allow agencies to charge costs of producing a record, such as a storage device or the hourly rate of the lowest paid employee only if they need more than two hours to prepare copies. Another proposal by Senator James Eldridge would eliminate charges for search time or review of records “to determine the extent to which exempt and public information must be segregated.”

And that’s one of the most exploited loopholes: the labor fees agencies tack on for searching, segregating, and redacting documents. Those charges are how bureaucracies inflate the cost of public records requests. Often, agencies argue they have to assign several employees to review the data more than once, including a legal counsel to confirm the data segregation. Yet withholding certain information from disclosure is not mandatory. In other words, agencies are opting to redact information —and then charging the public for work that the agencies themselves chose to do. By overinterpreting the law, bureaucrats can play the role of censors both by redaction and heavy fees.

Consider the latest example: the Globe recently reported that financial disclosure reports from 3,800 lawmakers and other government officials are not easily available in Massachusetts for the public to see. The State Ethics Commission wants to charge the Globe about $14,000 for the documents, on which officials have to disclose their financial ties. That is without even providing paper copies, and with the caveat that the release would take a number of months. Meanwhile, in at least 29 other states, anyone can look up public officials’ financial disclosure reports online.

Laws that reduce copying charges and limit charges for staff time would help, but that still leaves state agencies with the ability to thwart a records request with production charges. Massachusetts needs to follow states like Ohio, California, and West Virginia, where public agencies can only charge for the actual cost of copying records and not for searching and compiling them.

Without a stricter law, government agencies will still have discretion to throw up financial roadblocks to disclosure. Charging exorbitant fees for public records is a sign of a broken democracy. New laws should respect the citizens who fork out tax dollars with true and reasonable access to public records.

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