By DAN CROWLEY
Staff Writer
Daily Hampshire Gazette
NORTHAMPTON — The wheels of justice turn slowly, the saying goes. In Massachusetts, the wheels of public records access can be just as slow.
Ask retiree Jim Palermo of Southampton who for 10 months has been trying to review education records naming the state’s public schools that participated in a 2012 international student assessment study.
The state Department of Elementary and Secondary Education, which declared Massachusetts students among the world’s highest scorers in reading, math and science based on testing results from that study, has refused to release the information to Palermo, citing an exemption in the state’s Public Records Law.
What’s more, the department continues to withhold the information even after the state’s public records supervisor ordered its release on two occasions last year.
“For Massachusetts, for all its bragging about being progressive and all that stuff, I find it discouraging,” Palermo, 74, said of his first experience seeking public records held by state government. “It’s a complete distortion of the basic law.”
The administrative gridlock is an example of the kinds of barriers that state Rep. Peter V. Kocot, D-Northampton, and other open records advocates are trying to knock down in new legislation aimed at reforming the state’s Public Records Law.
Kocot, the chief sponsor of the proposed legislation, seeks to put teeth in the state’s Public Records Law with new enforcement measures and fines. It also would reduce fees for records, provide more electronic access and designate point persons in each state agency to handle records requests, among other requirements.
“It was clear there was a problem with the system, not least of which is that these statutes haven’t been looked at or touched since the 1970s,” Kocot said this week. “It was clear the law needed to be changed.”
He said the ultimate intent of the bill is to improve public confidence in state government with more transparency and accountability. Kocot said the proposed reforms are a logical extension of the reforms of ethics, campaign finance and lobbying laws the Legislature passed in 2009.
“I think it’s the right thing to do,” he said. “The public’s confidence in state government is not what it should be.”
Kocot is chairman of the Joint Committee on State Administration and Regulatory Oversight, which has jurisdiction over the Public Records Law. He said the legislation was two years in the making and drafted with input from groups including Common Cause, the Massachusetts Newspaper Publishers Association and the American Civil Liberties Union of Massachusetts. It draws on a review of public records laws in 35 states and seeks to designate a point person in every state agency to coordinate public records requests.
“In many agencies, it’s not clear who that is,” Kocot said. “There is very little coordination at this point at the agency level.”
The legislation also would require state agencies to post on their websites a list of all major databases and categories of records they maintain, as well as public records requests and their responses to those requests. It would limit fees for compiling, redacting and copying records, and provide more records electronically, which often comes at little to no cost to the government. Photocopies would drop to 5 cents from 20 cents per letter-size page and 50 cents for a computer printout, for example.
“There are things that are clearly not on the websites that people are interested in and trying to get at,” Kocot said. “Knowing this information shouldn’t cost you anything. You’re a taxpayer; you’ve already paid for it.”
The reforms would require custodians of records to comply with requests within 15 days. Under the current law, a records custodian must respond to requests “as soon as practicable, without unreasonable delay and within 10 calendar days.”
“We want them to turn over the records,” Kocot said. “You can scan stuff with an iPhone now. It’s not like we have technological barriers here.”
In addition, if a records custodian refuses or fails to comply with orders to release public information, the state supervisor of records is to notify the attorney general or district attorney to ensure compliance.
A person or group denied public records can also seek relief in the courts and, if they prevail, be awarded attorneys’ fees. A public officer who refuses to comply with orders from the supervisor of records would be subject to a fine of not more than $100 for each day of refusal to turn over public records, under the legislation.
Pam Wilmot, executive director of Common Cause Massachusetts, said the commonwealth is one of only four states in the country that do not award damages if someone prevails in a public records battle in the courts.
“That’s critical,” Wilmot said. “There’s a feeling that there’s no consequences for giving people the runaround.”
Kocot said that among the 45 House lawmakers supporting the bill, 18 are in leadership positions, which bodes well for the reforms. The bill is in the joint committee Kocot chairs, along with an identical bill sponsored by state Sen. Jason M. Lewis, D-Winchester.
“I hope to hear this bill early in the session and I’d like to get quick action on it this year,” he said.
Wilmot said the bill’s wide backing is a positive sign as it moves to debate.
“This is the biggest outpouring of support from the Legislature that I’ve ever seen” on the public records access issue, she said
Palermo’s story is one of many Kocot said he heard during testimony regarding delays, unresponsiveness and runarounds involving public records access. Although the enforcement measures proposed in Kocot’s public records access bill may have helped Palermo, his case appears to be moving to the courts anyway after two Northampton attorneys stepped up to help him.
Lawyer Thomas A. Miranda said he and his associate, Justin P. Goldberg, are reviewing the case made by the state Department of Elementary and Secondary Education to withhold the records Palermo seeks — and preparing a possible complaint. The case hinges, in large part, on an interpretation of the federal Education Sciences Reform Act of 2002.
Miranda said he learned of Palermo’s public records battle through a Feb. 26 Gazette front-page story, and believes the records in question should be released based on his preliminary understanding of the case.
“It sounded like he (Palermo) was attempting to do an analysis of some statistics and was thwarted in his ability to get some basic information,” Miranda said. “I just had a feeling it was wrong.”
“It just seems logical. We’re bringing the Commonwealth into the next century, or the present century,” State
Rep. Colleen Garry, D-Dracut told the Lowell Sun.
“I witnessed firsthand one of my colleagues, Rep. Shaunna O’Connell of Taunton, being charged several hundred dollars by the Patrick administration for documents,” State Rep. Marc Lombardo, R-Billerica, said to the Sun. “That’s just not how the system is supposed to work.”
Gavi Wolfe, legislative counsel for the American Civil Liberties Union of Massachusetts, said the freedom of information is essential to a functioning democracy.
“Legislative leadership has made some government reforms a priority: ethics, campaign finance, other similar issues. This is the next logical step in this progression,” Wolfe said. “This is something in this state we need to tackle — frankly, to be true to our roots.
“We think of ourselves as the cradle of liberty and the place where American democracy got its start. If we want to own that legacy, we need to make sure the public has good access to info about our government,” Wolfe said.
The ALCU is one of several organizations comprising the Massachusetts Freedom of Information Alliance, including Common Cause Mass., the League of Women Voters of Mass., Mass. Newspaper Publishers Association and the New England First Amendment Coalition.
“It would make the fees be saner,” Robert Ambrogi, executive director of Mass. Newspaper Publishers Association.
Ambrogi said the potential costs involved in a public records request are a significant barrier to entry. This is sometimes due to agencies charging for staff time spent compiling the records and not the actual cost of reproducing them.
“Being charged fees that no ordinary person whose last name is not Gates or Trump can pony up, that’s one of the ways that we are kept in the dark about the operations of our government,” Wolfe said.
“Most citizens, never mind most media organizations, don’t have the ability to litigate every public- records request,” said Justin Silverman, executive director of the New England First Amendment Coalition. “There’s really no way to force those agencies to give those documents to the requester.”
Proponents of the legislation say it wouldn’t necessarily expand the law, which Wolfe called “essentially toothless,” but make it easier to enforce.
“Enforcement of the law is left to the Secretary of the Commonwealth’s office, and they have a significant backlog of cases to deal with,” Ambrogi said.
Wolfe said the public-records law has not been meaningfully updated since 1973 and should reflect the digital revolution.
Dan Crowley can be reached at [email protected].
Kyle Clauss can be reached at [email protected]
