Mass. public records law:
Problem more than cure?

By Emily Huizenga
Bulletin Correspondent

Forget Clorox.

According to Gavi Wolfe, legal counsel to the Boston office of the American Civil Liberties Union, sunlight is the best disinfectant. For the government, that is.

Wolfe discussed how important open access to information is to fostering the “cleanliness” of government in his session, “Freedom of information ain’t free: political movement for public records reform,” Saturday, Feb. 11. About 15 lawyers, editors, reporters and professors gathered in the Boston Park Plaza Hotel at the New England Newspaper and Press Association 2012 Convention and Trade Show to discuss – and lament – the current public record system.

Wolfe said Massachusetts’ public records law is essentially defunct. The law, which hasn’t been substantially updated since 1973, has made public information fundamentally inaccessible because of excessive cost, technological barriers, and administrative interference, he said.

“Public record law is essential to the work of journalists,” Wolfe said. “So when it doesn’t work, that’s a problem. It’s expensive, outdated and toothless.”

The first issue Wolfe mentioned was cost. Massachusetts government charges 20 cents for each photocopy of a record page, 50 cents for each printed page from the record database, and processing fees to separate “what it can withhold from what it chooses to disclose,” Wolfe said.

Andres Caamano, senior news editor of The Gardner (Mass.) News, said town officials often come forward with five-figure estimates for the cost of information.

“The way they calculate … makes you wonder where they learned math,” Caamano said.

Wolfe said officials often hire lawyers to examine and edit the records, then make journalists foot the bill.

Caamano said: “Typically, when lawyers get involved, things get tricky. Chances are you’ll get reports back with black lines through them. Plus you have to pay for the lawyer.”

Wolfe presented another problem: Government officials use dilatory tactics on the release of information, which hinders journalists on deadline.

He projected a slide of a brick wall onto the screen.

“Does this look familiar to anybody?” Wolfe asked. “Chances are you’ve all seen it.”

Jane Seagrave, editor in chief of the Vineyard Gazette of Martha’s Vineyard, Mass., said: “They make it seem like they have to take 10 days to secure information. One of the biggest problems I see is small-town papers not being educated enough about the law. They get taken advantage of – whether purposefully or inadvertently.”

Caamano agreed.

“The agencies hope you’ll just go away because they dragged it out so long,” he said.

Wolfe’s solution? Make electronic records the norm in Massachusetts, yielding better search capabilities, lower costs, eco-friendliness and increased efficiency. Copies would cost only 5 cents a page, 7 cents for larger sheets, and processing fees, except when preparation requires more than two hours of work, would be eliminated.

Posting information on a public website would pre-empt the need for requesting public records, theoretically benefiting the government agencies themselves, Wolfe said.

Wolfe also suggested legislation that would allow courts to award lawyers’ fees when government agencies block access to public information – legislation that exists in nine of 10 states, but not in Massachusetts.

“What’s the use of the right to challenge things in court if you can’t get reimbursed?” Wolfe asked. “This law would not only take care of those fees, but also provide incentive for the government to respond promptly in the first place.”

Besides lobbying local legislators, journalists and members of the public at large should raise awareness of what Wolfe sees as a useless Massachusetts public records law by publishing editorials and features, or simply chronicling the government agencies’ reluctance to release information, he said.

“The back and forth becomes the story,” Spencer Buell, editor in chief of The Gatepost independent student newspaper at Framingham (Mass.) State University, said. “Once everyone sees that they’re hiding something, they’ll know there’s something there.”

Wolfe said: “The basic idea is that freedom of information is essential to democracy. Public record law comes into play because we can find out what the government is up to, and the more we know the more we can engage in advocacy about issues.”

Emily Huizenga is an undergraduate student in the Northeastern University School of Journalism.

POSTED 3/19/12

'Typically, when lawyers get involved, things get tricky. Chances are you’ll get reports back with black lines through them. Plus you have to pay for the lawyer.'

-- Andres Caamano,
Senior
news editor,
Gardner (Mass.)
News