In states across the country, “right to know” laws — regarding things such as open records and open meetings — haven’t been updated in decades. As a result, the way the government provides records to its constituents in 2015 is the same as the way it has been doing so since the before the Internet. States may only provide records in paper form, even if they need to print out electronic records in order to do so. States might fail to pass along the savings that electronic record management provides to them, charging extensive search fees that reflect an older time when clerks would need to shuffle through boxes of papers in order to find the required information. Meanwhile, the advent of electronic records has meant that many new kinds of records are officially available for the public to access — from public datasets to official email records — and yet in many states, it is not altogether clear how the public can effectively and affordably access those records in the formats that leave them most useful.
As a result of this mismatch, many states are finding the need to update their public records laws. Fortunately for the people of Massachusetts, change in their state may be on the horizon. Having not changed the public records law in the state of Massachusetts since 1973, open government groups have teamed together to push for reform of their public records law and provide better access to public information. Carol Rose, executive director of the ACLU of Massachusetts, puts it simply: “Our public records law is broken.” She characterizes it as being “a law on the books that’s just ignored by public officials and breeds a lack of faith and lack of trust in government and that’s bad for our civil society. Public officials know they can ignore the public records law and get away with it because they do.”
Under the current laws, Justin Silverman of the New England First Amendment Coalition pointed out:
Information [may be] public by law but in reality is unobtainable and essentially secret … It’s not clear who to contact to make a request for records. The records themselves cost too much. Litigation, most often the only way to force compliance with the law, is expensive and simply not an option for nearly everyone who contacts my organization looking for help.
Shawn Musgrave, of the Boston-based investigative news outlet MuckRock, described how Massachusetts’ current public records policy was deficient relative to other states. Massachusetts was one of just four out of the 50 states to reject MuckRock’s request to gain records revealing federal military equipment transfers to local police. Rather than demonstrating a willingness to facilitate public requests, Musgrave observed, “In Massachusetts, bureaucratic footdragging, unreasonable fees and excessive withholding or redaction are common.”
As it stands, the open government groups are tackling a legacy of government agencies being able to keep public records secret, charging of unreasonable fees, misrepresentation regarding who is responsible for records within a single agency, records being provided in a nonusable format and there being no penalties for those who partake in such activity limiting the rights of citizens.
- Create accountability by directing courts to award attorney’s fees when agencies unlawfully deny access to public information. The overwhelming majority of states (46 of them, plus the federal government) have evened the scales of justice by allowing or requiring attorney’s fees in various circumstances — a proven incentive against obstruction and in favor of obeying the law in the first place.
- Ensure that public records in electronic form, such as emails and spreadsheets, are provided electronically instead of printed out on paper. This will save paper, time and money all around.
- Make records affordable, with only nominal fees that reflect the actual costs of the records and do not inhibit access. Because public information should be accessible to ordinary members of the public, not only to the wealthy.
- Streamline the access process by designating “records access officers” in state agencies to facilitate requests. Assigning a point person reduces bureaucratic complexity for agencies and records-seekers alike.
Any good open data program depends on good access to public records. Informed civic participation depends on people being able to get the information they want from their governments. Because of that, Sunlight feels strongly about preserving and increasing legal access to government’s open records. We are excited to see this type of reform being pushed, and hope that the legislation gets the support that it requires. We have hope that we’ll soon witness the state of Massachusetts join the growing number of states who have already taken steps to improve public access to government information.