GOVERNOR SIGNS PUBLIC RECORDS LAW OVERHAUL

Published on: July 26, 2016

Governor Baker signed a major overhaul of the state’s Public Records Law, mandating changes to the way municipalities and state agencies administer and charge fees for public records requests. In addition to amending the public records request process, the bill authorizes new penalties for violations of the Public Records Law, and requires that municipalities and state agencies appoint a “Records Access Officer” and make certain records available for free online. The new provisions affecting municipalities and state agencies take effect on January 1, 2017. The most significant changes in the new Public Records Law are as follows: Deadlines: Municipalities and state agencies must respond to public records requests within 10 business days (the current deadline is 10 calendar days). In the event of unduly burdensome requests, municipalities may extend the time to produce records to 25 business days, and state agencies may extend the time to 15 business days. The Supervisor of Public Records may grant a one-time additional extension of 30 business days for municipalities and 20 business days for state agencies. Electronic Files: Records must be provided by electronic means unless the record is not available in electronic form or the requestor does not have the ability to receive electronic records. To the extent feasible, records must be provided in a searchable, machine readable format, unless the requestor prefers a different format.  Fees: The fee for standard black-and-white copies and printouts is 5-cents per page, which is the same amount set by the Supervisor of Public Records earlier this year. Fees for large documents, color copies or electronic records must be based on the actual cost to reproduce the record.  No fee may be charged for records that are “freely available for public inspection.” Municipalities with populations over 20,000 must provide 2 free hours of employee time to “search for, compile, segregate, redact or reproduce” records. Time exceeding 2 hours may be charged at the rate of the lowest paid employee capable of performing the search and segregation function, but not to exceed $25 per hour (including time spent by outside vendors or counsel). State agencies must provide 4 free hours of employee time. A rate higher than $25 per hour may be authorized by the Supervisor of Public Records under certain circumstances. Records Access Officer: Each municipality and agency must appoint a Records Access Officer to track and coordinate timely responses to public records requests.  The Records Access Officer must produce guidelines to assist persons making public records requests. Penalties: The Supervisor of Public Records may order compliance with the Public Records Law and request that the Attorney General’s Office enforce such orders by filing action in Superior Court. The Superior Court may award attorney fees and costs for violations of the Public Records Law, or a waiver of the fees charged to comply with a request. Upon a determination that a municipality or agency did not act in good faith in withholding or failing to timely furnish a public record, the Superior Court may impose punitive damages between $1,000 and $5,000. Website Access: To the extent feasible, municipalities must post online certain commonly available records, including budgets, annual reports, minutes of open meetings, hearing notices, final decisions from agency proceedings and winning bids for public contracts. State agencies are required to post such records in a searchable website database. For any questions regarding this article, please contact Ed Allcock at eallcock@meeb.com.