Broken Records: Appeals Nonsense

Secretary of the Commonwealth Galvin Attempts to Rewrite Law in Order to Dodge It

An update to the Massachusetts public records law is set to go into effect in January, and with it a new set of regulations drafted by Secretary of the Commonwealth William Galvin’s office. To those unfamiliar with the quagmire that is Massachusetts records access, this might sound like a “Victory!” for transparency, but it isn’t. Unfortunately, Galvin’s office has sought to undermine the new law by proposing regulations that would exempt the office from several important responsibilities.

Under both the old and new records law, the secretary of the Commonwealth is responsible for ruling on appeals from people who are denied access to public records. Journalists, lawyers, activists and others file hundreds of these appeals every year; in fact, using the appeals process is a fairly routine part of requesting records in Massachusetts because of the comic regularity with which government agencies break the law. Last year, a massive audit by Northeastern University journalism students, WCVB, and the Boston Globe found that 58 percent—the majority—of the Commonwealth’s 351 municipalities did not even meet the low bar of responding to records requests on time. Recently, Boston Globe reporter Todd Wallack found that nearly half of appeals filed this year were submitted simply because an agency did not respond to a request.

Despite the importance of the appeals process, the old law gave Galvin’s office discretion on whether to rule on appeals, leaving requesters at its mercy. Sometimes it declines to do so or simply does not respond to them at all. In the update, however, state legislators made it mandatory, writing that the secretary of the Commonwealth’s office “shall issue a written determination regarding any” appeal, according to the new law that was passed unanimously by House and Senate lawmakers.

Instead of accepting the new law as written, Galvin’s office has decided to reinterpret it to mean the same thing as the old one. According to the proposed regulations, which were released last week, “it shall be within the discretion of [Galvin’s office] whether to open an appeal concerning a request for public records.” The regulations state that Galvin’s office may decline to rule on an appeal for one of several listed reasons—or for no reason at all.

State lawmakers limited the time allowable for Galvin’s office to rule on appeals after the media criticized Galvin for dragging out the appeals process for months, but in his proposed regulations, Galvin would exempt his office from this time limit. The new law states that Galvin’s office must rule on all appeals “not later than 10 business days following [their] receipt.” That’s two weeks—still a fairly generous amount of time—but Galvin’s office came up with a neat trick for dodging the new deadline: It simply redefined what it means to “receive” an appeal. The proposed regulations state that Galvin’s office must review and assign a number to each appeal it receives. Only then does the appeal count as being “received,” and only then do the 10 business days begin. This delay only applies to members of the public who file appeals. When an agency petitions the Secretary of the Commonwealth under the new law, Galvin’s office uses a definition of “receiving” that an English speaker would recognize.

That may not sound like a big deal—after all, how long should it take to review a letter and assign it a number? But there’s little doubt it will significantly delay the appeals process. When we examined our own appeals for a column published earlier this year, we found it took Galvin’s office an average of about 11 days to assign a number. And if Galvin’s office decides it wants to continue taking months to issue rulings, all it needs to do is wait even longer.

The secretary of the Commonwealth’s employees don’t always count in business days, either. When it comes to narrowing the window of time for a requester to file an appeal, the regulations switch to calendar days—specifically, a 90-calendar-day deadline, which is arbitrary and not specified anywhere in the law.

Drafting these regulations was an opportunity to clarify vague and troubling language, but Galvin’s office has failed to address several issues left by state lawmakers. For instance, the new measure allows an agency to petition Galvin’s office to be relieved of its duty to provide records if a request is “part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass”—but none of these terms are defined within the law. They aren’t defined in the regulations either, and to top it off, Galvin’s office plans to use them as reasons to refuse to open appeals.

The regulations also double down on a nonsensical rule that allows agencies to refuse to provide more records to anyone “who has failed to compensate the agency or municipality for previously produced public records.” The regulations say an agency can deny records on this basis as long as the agency “prepared a fee estimate” for the previously produced records. However, the regulations do not state that the requester has to have agreed to pay the fee, which is very troubling considering fees can sometimes be thousands or even millions of dollars—making them impossible for most requesters, even profitable news organizations, to afford. The old system, where agencies simply collected fees before providing records, was much more logical.

Galvin’s proposed regulations are subject to a public hearing and a written comment period before they become official and hold the weight of law. The hearing will be on Thursday, Oct. 6, at 11 a.m. on the 17th floor conference room of the Office of the Secretary, 1 Ashburton Place, in Boston. We hope our readers will attend or send in written testimony calling on Galvin to clean up these regulations—especially the exemptions he gave his office from the law. The Massachusetts Municipal Association, a taxpayer-funded lobbyist group that has been fighting against public records reform, will be testifying, so it’s important that transparency advocates counter its effort.

Broken Records is a biweekly column produced in partnership between the Boston Institute for Nonprofit Journalism, DigBoston and the Bay State Examiner. Follow BINJ on Twitter @BINJreports for upcoming installments of Maya and Andrew’s ongoing reporting on public information.