Public-records reform: Start with weak tea; add water

Judging from the tone of coverage, it’s hard to tell whether the Massachusetts House’s unanimous approval of public-records reform legislation Wednesday was a step forward or a setback. But it sounds like the already-watery bill under consideration has been diluted still further.

Bob Ambrogi, executive director of the Massachusetts Newspaper Publishers Association and a staunch advocate of reform, is everywhere, telling Andy Metzger of the State House News Service that the bill is “a mixed bag”; lamenting in an article by Todd Wallack of The Boston Globe, “My concern is that the bill had just introduced an awful lot of ambiguities”; and describing the legislation as “one step forward and one step back” in an article by Shira Schoenberg of MassLive.com.

The problem is that even though Massachusetts’ public-records law is among the worst in the country (the Center for Public Integrity recently gave the state an “F” for public access to information), the bill passed by the House both giveth and taketh away. Here’s Wallack:

The legislation includes a measure designed to reduce the fees for copies. It orders government agencies to publicly designate someone to handle public records requests, and it gives citizens the opportunity to potentially recoup their legal fees if they successfully sue to obtain records….

But the bill also gives agencies significantly more time to respond to requests, allows them to outsource some requests to vendors, and did not go as far as some advocates had hoped to rein in labor charges and penalize officials who flout the law.

The bill also continues to exempt the governor’s office, the judiciary and the Legislature itself from the provisions of the law. A commission is going to study that — although, needless to say, it would be a major surprise if we ever heard about it again.

The only hope now is that the Senate will strengthen the legislation when it comes up for consideration early next year. The danger is that Gov. Charlie Baker will sign a weak bill into law, officials will pat themselves on the back for a job well done, and meaningful reform will be put off for another generation.

Guest commentary: Reform public-records law now

The following statement was released Monday by the Massachusetts Freedom of Information Alliance.

The Massachusetts Freedom of Information Alliance, a network of more than 40 groups committed to reforming the state public records law, today commended Gov. Charlie Baker for issuing guidance to improve state executive agencies’ handling of requests for information, but emphasized that significant changes to the law itself are still needed to achieve broad, enforceable access to public information throughout the Commonwealth.

Responding to widespread criticism that the Massachusetts public records law is among the weakest in the country and routinely flouted by public officials, Baker last Thursday issued a memorandum to cabinet secretaries providing guidance on how to “reduce delays and costs that burden accessibility.” The memo directs agencies to designate a records access officer to help streamline requests, to standardize fees for copying and staff time, and to set expectations for agency response time. The guidance applies only to state executive agencies, not municipalities, independent agencies, or other entities subject to the public records law.

MassFOIA commended the governor’s action but simultaneously called for legislative reform.

“We applaud Gov. Baker for providing leadership and direction to improve access to public information,” said Justin Silverman, executive director of the New England First Amendment Coalition. “But even the best-intended administrative guidance is inherently limited. It doesn’t have the force of law and it won’t have any impact on access at the municipal level.”

“The governor deserves credit for taking this step,” said Gavi Wolfe, legislative counsel at the ACLU of Massachusetts, “but we also need legislation to fix the law itself and ensure real accountability. Otherwise, Massachusetts will keep getting failing grades and officials will continue to treat freedom of information as a suggestion instead of a public right.”

Several of the provisions outlined in Baker’s memo may increase timely and affordable access, but they set no firm deadlines for complying with requests or overall limits on the amount of money that agencies can charge to provide information the public has a right to obtain.

“Even under this guidance, agencies can — and in all probability will — continue to charge a fortune for requests that they perceive as complex,” said Robert J. Ambrogi, executive director of the Massachusetts Newspaper Publishers Association. “Time and again we’ve seen Massachusetts agencies demand huge fees when other states turn over the same information for a fraction of the cost. While this guidance is a step in the right direction, it won’t prevent abuses of the law.”

“One of the most important reforms is attorney’s fees for those wrongly denied public records, and that cannot be established by the governor,” said Pam Wilmot, executive director of Common Cause Massachusetts. “That takes legislation. We’re pushing for a vote on a strong comprehensive bill in the legislature in September.” Forty-seven other states provide attorney’s fees to hold officials accountable when they refuse to follow the law.

The state public records law grants the public the right to access information about government operations from the executive branch and municipalities, subject to certain exemptions. MassFOIA contends that the law is weak and needs updating for the digital age, having not been substantially amended since 1973.

In July, the legislature’s Joint Committee on State Administration and Regulatory Oversight gave the nod to a bill supported by MassFOIA, which is now before the House Committee on Ways and Means. Key provisions would update the law to reflect advances in technology, rationalize fees for obtaining public records by having them reflect actual costs, and provide attorneys’ fees when agencies unlawfully block access to public information. It would also help government officials fielding public records requests by allowing them additional time for compliance and the ability to ask for other accommodations in “exceptional circumstances.” Legislative leaders have indicated a desire to vote on public records reform legislation in the fall.

The proposed legislation aims to improve access to information the law already defines as a public record. It would not alter the scope of the public records law or make any changes to existing exemptions, including those for personal privacy, criminal investigations, personnel records and trade secrets. Rather it would modernize outmoded language in the law and strengthen procedures for compliance and enforcement.

Specifically, the legislation would:

  • Promote access to records in electronic form.
  • Direct agencies to assign a “records access officer” to streamline responses to public records requests.
  • Lower costs for requesters and limit charges for redacting documents to withhold information.
  • Require attorneys’ fees when access to public records is wrongly denied, creating an incentive for agencies to obey the law.
  • Extend the time for compliance from 10 to 15 days.
  • Allow record-keepers to obtain more time or the ability to charge special fees when responding to frequent or unusually large requests.

 

Let’s keep the heat on for public-records reform

In case you missed it, Todd Wallack has a tremendous article in Sunday’s Boston Globe on our broken public-records system in Massachusetts.

Wallack begins with a killer anecdote: a $2.7 million price tag placed on Breathlyzer records a lawyer was seeking from the State Police. The lawyer, Thomas Workman of Taunton, says that other states charged him anywhere between nothing and $75.

“I was more disappointed than surprised,” Workman is quoted as saying. “I do work across the country, and I have more trouble trying to get information in Massachusetts than other places.” And oh, by the way: he never got the records he was seeking.

Right now is when you can make a difference, as I noted in a blog post reporting that the Massachusetts Municipal Association (MMA) is trying to derail reform. Rather than sending my legislators emails, I posted on their public Facebook pages. State Rep. Sean Garballey, D-Arlington, responded by telling me that he’s a co-sponsor of legislation that would significantly improve the law. I haven’t yet heard from state Sen. Pat Jehlen, D-Somerville, but will let you know if and when I do.

And this just in: Bob Ambrogi, a media lawyer who’s executive director of the Massachusetts Newspaper Publishers Association, sent out an email a few minutes ago warning that the MMA may have already succeeded, as a House session to vote on the reform legislation — now House 3665 — has been canceled. Let’s keep pushing. Ambrogi writes that “the bill may now be effectively killed.”

Not yet. Let’s keep pushing. Not sure who’s representing you on Beacon Hill? Just click here.

Cities and towns seek to derail public-records reform

A serious attempt to reform the state’s broken public-records law — the shortcomings of which I described recently in the WGBH News Muzzle Awards — is on the verge of being derailed by the Massachusetts Municipal Association (MMA), according to advocates.

On Friday came word that the state Legislature was likely to pass the long-awaited reform bill, House 2772, according to The Boston Globe and State House News Service. The bill, though not perfect, includes key provisions to hit noncompliant government agencies with lawyers’ fees and to limit how much those agencies can charge for complying with public-records requests.

Now comes word that the municipal association, a lobbying group for the state’s cities and towns, is working to prevent final passage. Here is a statement sent out by the MMA in which the bill is denounced as an “unfunded mandate” that could be used to “harass” local officials.

The following is an email sent to me by Bob Ambrogi, executive director of the Massachusetts Newspaper Publishers Association.

Hi Folks,

It is do or die time for MassFOIA, because our public records bill, which was on the move, is now under aggressive attack.

As of yesterday, the plan was for a House vote on our public records bill next Weds, with a Senate vote the following week. Now, the MMA is fighting back with everything they have [a reference to the document linked above] and we need to do the same or the bill may be dead.  In fact, it appears the House has cancelled their formal session for next week so our reform efforts are in mortal danger. If they kill the bill now, it will be all the more difficult to revive.

So, please:

1) Write to your members to get them to call or email their legislators. I’ve attached an email that Pam wrote to Common Cause members this morning. [Note: I have not included the attachment.]

2) Stay tuned as we develop materials over the weekend and early next week that you may need to sign onto — such as a coalition letter. We will need a quick turn around.

3) Keep your eyes open for updated talking points over the weekend.

Thanks for your support of this critical issue!

Best,

Gavi Wolfe, ACLU of Massachusetts
Pam Wilmot, Common Cause Massachusetts
Bob Ambrogi, MA Newspaper Publishers Association
Justin Silverman, New England First Amendment Coalition

Proposed Mass. shield law appears to protect bloggers

The Massachusetts Legislature this week will consider, once again, whether journalists should be protected from subpoenas ordering them to give up their confidential sources or turn over unused notes, video footage and the like.

According to Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, the bill, called the “Free Flow of Information Act,” will be the subject of a public hearing before the Joint Committee on the Judiciary on Tuesday at 1 p.m. The bill is being sponsored by state Rep. Alice Hanlon Peisch, D-Wellesley.

In an era defined by blogging, social media and citizen journalism, one of the key questions that comes up whenever shield laws are discussed is who should be covered. Many of us argue that it’s journalism, not journalists, that should be protected, and that if a lone blogger is able to convince a judge that she’s engaged in bona fide journalism, then she should be covered just as fully as someone who’s on staff at the Boston Globe.

Fortunately, the bill being considered this week appears to allow for exactly that. I’ve asked Ambrogi for clarification (he has since weighed in, below), but what I’m looking at is the definition of “news media,” which is described in the bill as follows (my emphasis):

[A]ny newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite station or network, or audio or audiovisual production company, or any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution.

The bill specifies very strict protection for anonymous sources and less strict protection for unused notes, footage and other materials accumulated in the course of newsgathering but not actually used. That’s in accord with longstanding legal tradition, so no surprise there. There’s an exception “to prevent imminent and actual harm to public security from acts of terrorism” as well.

Ambrogi reports that Massachusetts is now just one of 10 states that does not have a shield law. But the state’s Supreme Judicial Court has recognized a limited right for reporters to protect their sources. In fact, the only state with no shield protection whatsoever is Wyoming.

By far the most significant gap is the lack of a federal shield law, compounded by the U.S. Supreme Court’s 1972 ruling in Branzburg v. Hayes that journalists do not have a constitutional right to protect their sources. That gap has been exploited by federal authorities in states where journalists would otherwise have shield protection — such as the cases of Jim Taricani in Rhode Island and Josh Wolf in California.

The bill being considered this week has come up before, and I don’t know whether there’s any more reason to think it will pass now than it has in previous years. Personally, I’m lukewarm on shield laws, since they can give an already-skeptical public reason to believe that the media are a privileged class.

But the Massachusetts bill appears to be carefully drafted, and would do no more than level the playing field with respect to most other states.

Instant update: I just heard from Ambrogi, who confirms that the bill would give citizen journalists a chance to argue that they should be entitled to shield-law protections as well — although he cautions that the word “business” might mean they have to be “at least trying to derive some income from the citizen journalism.”

Correcting something I said on “Beat the Press”

If you watched “Beat the Press” on WGBH-TV (Channel 2) this evening, you may recall that I criticized media and court representatives who’ve drafted new guidelines for digital coverage of judicial proceedings.

I said a blogger should have been included in the discussions. And I even had a suggestion: Adam Gaffin of Universal Hub, who’s probably the most respected independent blogger in Greater Boston.

As it turns out, Gaffin was, in fact, a part of those discussions, according to Robert Ambrogi, a media lawyer who is executive director of the Massachusetts Newspaper Publishers Association.

Obviously I wish I’d known that before I opened my mouth.