Government Lawyers Think Open Records Reform Proposal Hands Over Too Much Power To The People

from the more-darkness-and-denials,-please dept

The state of Massachusetts has some of the worst open records laws in the nation, which have not been updated since the 1970s. The main problem is the statutes provide no deterrence for abusive behavior by government agencies and very little in the way of recourse for public records requesters.

The laws -- as they stand now -- operate on the presumption of secrecy, which is completely antithetical to the purpose and spirit of the statutes. There's really no reason the state's public record laws should contain this much secretive bloat. Here's Allison Manning of Boston.com detailing just one of the many problems with the laws.

Our public records laws are abysmal, especially compared to those elsewhere.

There are 19 pages of exemptions alone in the 60-page guide to Massachusetts public records. How does this supposedly progressive state have such backwards open government laws?
What hasn't been shielded from the public by existing exemptions has been given a fresh coat of opacity by government officials supposedly tasked with ensuring maximum public access.
[A]fter the Globe challenged State Police for withholding the arrest record of one of its troopers, [t]he state’s supervisor of public records, Shawn Williams, ruled in favor of the police, finding that police had “the discretion to withhold records” that were covered under rules meant to protect criminal rap sheets from being misused; such discretion meant that the Globe could not obtain the names of the five Massachusetts police officers charged with drunken driving. A far more rational interpretation of the criminal-records rule would protect information about criminal proceedings, not the arrest records themselves. After all, the criminal-records law was never intended to open up a memory hole to conceal unflattering information about the police.
The state has also withheld records from a 63-year-old murder case, claiming (via the Secretary of State) that the investigation was still ongoing, despite police representatives stating they weren't pursuing any new leads and the lead suspect having expired years ago.

The state's House pushed through a set of open records law reforms late last year. It was a decided improvement (what wouldn't be?), but advocates still expressed concern the legislation didn't go far enough. Like many reform efforts, it started out robust and full-figured but was hacked to death by legislators and agencies who preferred to operate in as much darkness as possible.
“This doesn’t fix the fundamental issues with the law,” Michael Morisy, founder of the open records site MuckRock, tells Boston magazine. “Records take forever to get back to people. There’s no mandatory awarding of attorney’s fees, so agencies really don’t care if people sue them because they know by the law there are no consequences even if they lose. And while this bill does offer judges to grant attorney’s fees, that’s entirely discretionary, and what we’ve seen is that when things are discretionary, when things are optional, typically they just don’t happen.”

“One thing that public records law in Massachusetts really needed was teeth, and this bill just doesn’t do that,” Morisy says.
The Senate has introduced its version of the reform bill, and it's already receiving complaints from government entities which feel it swings the needle too far in the direction of accountability. The Massachusetts Municipal Lawyers Association doesn't like much of the Senate's proposed legislation and has issued a five-page memo to its members detailing its concerns. (h/t Michael Morisy)

For one thing, the MMLA wants government agencies to be given the discretion to ignore filers if they believe someone is requesting records too frequently, or simply requesting too much.
S. 2120 provides no protection to a municipality from the frequent and harassing requestor. Considerable staff time is wasted in responding to overly broad and frequent requests. The municipality should not have to respond to someone abusing the system.
The memo does not detail how agencies would determine what constitutes "abuse" of the system, nor what they would have to offer as proof that they are being "harassed" by an open records requester. It appears the MMLA would prefer to have this left solely to the discretion of responding agencies, giving them one more way to refuse to hand over documents.

The MMLA also doesn't like the fact that the legislation would dial back the amount of money agencies can charge requesters or that it would make requests fulfilled in under a certain amount of hours automatically free. It believes all efforts made should be billed to requesters no matter what.

Considering state agencies are well-known for their extreme reluctance to respond to requests in a timely fashion, it's rather rich to see this government body demand that open records requesters have as little time as possible to pursue litigation over delayed responses or refusals.
There is no time period or statute of limitations within which the requestor must appeal to court. As in the House bill, there should be a 30-calendar day time period, from the date of receipt of the SPR’s order, within which a civil action must be filed, whether by the requester or by the municipality.
Statutes of limitations are generally in the one-year range. The MMLA wants one month. The singular purpose of this demand is to allow the state to dodge as much litigation as possible. Thirty days to engage representation and file a lawsuit is an incredibly tight time frame. Open records requesters had better hope everyone's schedule is clear. The MMLA may look like it's acting in fairness when it applies the same time limit to government agencies, but it doesn't point out the head start they'll have: in-house representation.

Other parts of the MMLA memo veer into sheer vindictiveness, as if open records requesters were a pestilence inflicted on honorable government employees. The Senate's bill -- having just been introduced and still sheltered from the carving knives of transparency opponents -- contains an automatic fee award for open records requesters who prevail in litigation against the government. In the interest of "fairness," the MMLA wants this to be a two-way street.
Reciprocity is necessary. If fees are to be mandated against municipalities, fees and costs should also be awarded to the municipality against frivolous and harassing requesters.
The MMLA's take on this conveniently ignores the truth of the matter: the only reason this stipulation exists is because state agencies have proven they cannot be trusted to comply with the law. The longstanding problem with open records laws everywhere in the nation has never been an epidemic of frivolous or overburdensome requests. It has been the ongoing exploration of the outer limits of open records laws by dozens of government agencies who have repeatedly refused to reply to requests in a timely manner. Agencies ignore requests, set up massive "paywalls," abuse exemptions, knowingly perform inadequate searches for records and otherwise do anything they can to avoid transparency.

The MMLA wants fee shifts to affect requesters -- a move that would do nothing to improve the state's horrendous laws or response track record. It's just a form of bullying being sold as fairness. The entity with deeper pockets and control of the records wants to have the right to smack around citizens for daring to ask for the "wrong" information.


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  • identicon
    Anonymous Coward, 9 Feb 2016 @ 4:06pm

    If the agencies have nothing to hide why are they worried about open record requests?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Feb 2016 @ 4:07pm

    They clearly have things to hide

    If they had nothing to fear about their activities, then they wouldn't be afraid of revealing the truth. By seeking to hide the records that by right should be public, they are reducing the ability of the public to verify that they are not doing the absolute worse things you can imagine. The government is no longer for the people, it is for the people who abuse their positions. The creep towards totalitarianism is worsening year by year.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Feb 2016 @ 4:12pm

      Re: They clearly have things to hide

      It's going faster than a creep. I would say more of a lobster shuffle speed.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 9 Feb 2016 @ 5:29pm

        Re: Re: They clearly have things to hide

        > It's going faster than a creep. I would say more of a lobster shuffle speed.

        You mean, scuttling in a contra-forward direction?

        reply to this | link to this | view in chronology ]

  • identicon
    Bob, 9 Feb 2016 @ 4:10pm

    all it takes is one bad apple to ruin them all.

    In all honesty I would bet that the majority of lower working people in a state agency are good, honest, and would respond to a request correctly without reservation. It is the people that handle the requests and the supervisors that are scared of what citizens will find.

    Course then there is Massachusetts as shown in this article.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Feb 2016 @ 5:59pm

    ".. a pestilence .."

    "as if open records requesters were a pestilence inflicted on honorable government employees"

    They may not look at it that way. The fine bureaucrats need to bat paperwork around for years, tie people up in court, follow the Very Important Proper Antediluvian Procedures to the miniscule letter, employ armies of assistants, assistants to assistants and lawyers, because it is all one big job creation scheme. If the machinery of government hummed along with ruthless efficiency, if processes were automated and simple, if citizens had nothing to be agitated about in order to keep courts busy, well where would they all be then? Walmart doesn't pay as well.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 9 Feb 2016 @ 11:08pm

    If you're going to be 'fair', be totally fair

    Reciprocity is necessary. If fees are to be mandated against municipalities, fees and costs should also be awarded to the municipality against frivolous and harassing requesters.

    The municipalities are funded by taxpayer money, so the agencies that are stonewalling and/or refusing don't have to pay a cent of their own money if a judgement is awarded against them. As such if a requestor loses a case they shouldn't have to pay any of their own money either, take it out of the municipality then as well. The taxpayers are paying either way after all.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Feb 2016 @ 11:13pm

    Government is supposed to protect the rights of the people, in return the people pledge to obey the government. When they stop doing that they are the enemy of the people, and the people rebel against unjust rulers.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Feb 2016 @ 2:09am

    I wonder where they got this idea about going dark from...

    reply to this | link to this | view in chronology ]

  • icon
    art guerrilla (profile), 10 Feb 2016 @ 5:15am

    bootless and fruitless...

    ...to expect a corrupted system to un-corrupt itself ! ! !

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Feb 2016 @ 6:42am

    So Wrong

    ALL the power is supposed to be with the people.

    A lots of folks in America have long forgotten who the REAL KING IS!!!

    A Nation is NOT its leaders, it is it's people! Leaders that forget this deserve the nasty end of a revolution!

    reply to this | link to this | view in chronology ]

  • identicon
    TruthHurts, 10 Feb 2016 @ 6:57am

    Say what?

    "Government Lawyers Think Open Records Reform Proposal Hands Over Too Much Power To The People"

    Sorry, but it isn't "handing over" when those powers belonged to us in the first place and our government illegally took them away.

    We've almost reached (I'd say we're well past it personally) the point where our current government needs to be kicked out, all of it, and then we can start over with the power where it belongs, with us, the citizens of this nation, not some 4 to 5 hundred corrupt individuals.

    Start by voting out every incumbent, then, for the next 10 to 15 election cycles continue to vote out every incumbent.

    The corporations and other criminal organizations won't be able to afford to "purchase" that many new office-holders without destroying their profits.

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 10 Feb 2016 @ 9:34pm

      Re: Say what?

      Start by voting out every incumbent, then, for the next 10 to 15 election cycles continue to vote out every incumbent.

      The corporations and other criminal organizations won't be able to afford to "purchase" that many new office-holders without destroying their profits.


      Why, is purchasing new ones more expensive than continuing to purchase the ones already in office? It's not as though they can make one campaign contribution and then count on that person's support forever.

      reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 10 Feb 2016 @ 7:59am

    Well, how much?

    Citizen: "Well, now, Mr. Politician, how much power should the people have?"

    Politician: "NONE, you idiot! We know what's good for you and you have no business questioning that!"

    reply to this | link to this | view in chronology ]

  • identicon
    Ed, 10 Feb 2016 @ 1:50pm

    Just ask for a backdoor

    Mandate a backdoor for public agencies, and make the key available to the public. Then municipality time would not be wasted trying to fill in records requests.

    reply to this | link to this | view in chronology ]


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