MMA on new public records law

The MMA sent this second alert this afternoon, on the public records law that has now come out of a conference committee. I find myself torn on this one, as i feel there should be easy access to all public records, but I have heard Goeff Beckwith, Executive Director of the MMA say that the House version was preferred due to the House including more reasonable payments to the towns for responding, and thereby avoiding potential costs for towns from unreasonable public records requests.

Monday, May 23, 2016

LEGISLATURE TO VOTE ON FINAL PUBLIC RECORDS BILL

Conference Committee Report Would Limit Fees and Expose Communities to Attorneys’ Fees & Court Costs in Litigation

House Vote Scheduled for Wednesday

At 4:00 p.m. on Monday, May 23, the six members of the House-Senate conference committee on legislation to update the public records law reached agreement on a compromise bill, and reported it out to the full Legislature for an up-or-down vote later this week.

The Conference Committee bill differs in many important respects from H. 3858, the measure passed by the House of Representatives in November, and appears generally closer to S. 2127, the bill passed by the Senate in February. The bill would limit or set conditions on the fees that cities and towns can charge, and would create a more litigious process that could require the courts to award attorneys’ fees to plaintiffs in many circumstances.

Local officials and the MMA are not opposed to passage of legislation updating the public records laws. Rather, we have been calling for balanced and realistic changes to prevent the imposition of unfunded mandates on cities and towns, and to ensure that local officials have enough time and flexibility to comply with the act without diverting resources and time from their other important public services and duties on behalf of local residents and taxpayers.

However, the MMA’s analysis concludes that the Conference Committee’s bill would limit the ability of cities and towns to be reimbursed for responding to records requests by requiring communities to receive special permission from the Supervisor of Records every time they wish to reimbursed for time spent segregating or redacting records. Further, communities would need to receive special permission to charge more than $25/hour, which is quite common when department heads and attorneys need to participate in the process. Thus, the MMA believes that the bill has the potential to impose significant new financial burdens on cities and towns.

The MMA is also concerned that the bill could expose public entities and taxpayers to threats of expensive litigation by creating a presumption that courts should award attorneys’ fees and court costs in all but a narrow list of circumstances if the plaintiff receives any relief through a judicial order, consent decree, or if the municipality provides any of the requested documents after the complaint is filed. This provision could create an incentive for plaintiff attorneys to excessively litigate.

In general, the bill creates a more detailed set of statutory requirements that must be fulfilled under the state’s public records act, including new timelines, fee structures, administrative and judicial appeals processes, and new requirements for the administration of the law at the local level. The major changes as they impact cities and towns are outlined below.

Please review the draft of the Conference Committee’s public records legislation by clicking HERE (redraft of H. 3858 and S. 2127)

MAJOR PROVISIONS OF THE CONFERENCE COMMITTEE’S PUBLIC RECORDS BILL INCLUDE:       

Enforceable Timelines:

• Cities, towns and state agencies would have 10 business days to respond to every public records request, with an itemized “good faith” estimate of the fee to be charged, an explanation of the time necessary to fully comply with the request if it will take longer than 10 days (cities and towns would have up to 25 business days from the day the request is received), and a listing of the documents or categories of requested documents that will be withheld by the municipality or agency under existing state and federal law (there is no change to the current list of excluded documents that may be withheld).
• Cities, towns and state agencies could appeal to the Supervisor of Public Records for more time to comply with a public records request if the magnitude or difficulty of the request is too burdensome to complete in 25 business days, or if they believe the request has been submitted to harass the municipality.
• The Supervisor of Records could grant communities up to 30 additional business days to comply with a request, based on a petition submitted by a municipal records officer, or could grant a longer extension if the request is deemed to be frivolous or harassing in nature.
• Requestors could appeal to Superior Court to challenge the fee estimate, to reduce the time that municipalities could take to comply, or to challenge whether a requested document could be withheld under state or federal law.

Limits on Fees:

• Copying charges would be limited to 5 cents per page, and the charge for electronic storage devices would be capped at actual cost.
• The Conference Committee bill would place limits on the reimbursements that cities and towns could receive for the time spent by employees and necessary vendors (outside counsel, technology and payroll consultants, e.g.) as follows:
  • First, cities and towns would be prohibited from charging any fees if they do not adequately respond to the records request within 10 business days of receipt;
  • Second, reimbursement for employees and necessary vendors would be capped at the rate of the lowest paid employee who has the skill to search for, segregate, redact or reproduce the requested records, or $25 per hour, whichever is lower. Communities could only be reimbursed at a higher rate if they petition and receive special permission from the Supervisor of Records;
  • Third, cities and towns could only be reimbursed for time spent segregating or redacting records if the segregation and redaction is required by law, or the community petitions and receives special permission from the Supervisor of Records. This will impose a very cumbersome and bureaucratic process on municipalities, and it is unclear whether the final outcome would be full reimbursement, as the Supervisor of Records would have the power to deny adequate rates, and apparently would not be required to approve reimbursement for segregation and redaction of records that are allowed under the many exemptions in the law, but are not mandated by the law; and
  • Fourth, communities with a population over 20,000 would be required to waive any fee for the first two hours of employee or vendor time spent complying with a request.
• Requestors could appeal to the Superior Court to challenge the fee estimate or any fee approved by the Supervisor of Records.

Litigation and Enforcement:

• Requestors could appeal to the Supervisor of Records or the Superior Court at any time for non-compliance, to challenge fee amounts, or to challenge whether a requested record could be withheld.
• The bill could expose public entities and taxpayers to threats of expensive litigation because it creates a presumption that courts should award attorneys’ fees and court costs in all but a narrow list of circumstances if the plaintiff receives any relief through a judicial order, consent decree, or if the municipality provides any of the requested documents after a complaint is filed. This provision constrains judicial discretion, and could create an incentive for plaintiff attorneys to excessively litigate.
• Courts would have to provide a written explanation if they choose not to award attorneys’ fees or court costs.
• If attorneys’ fees or court costs are awarded, municipalities and state agencies would be required to waive all fees for responding to the request.
• Courts could assess punitive damages of up to $5,000 if it is determined that a municipality or state agency did not act in good faith.
• The Attorney General would be given enhanced power to enforce the public records act, and the AG’s intervention could also result in similar punitive damages and fee waivers.

Other New Requirements:

• Cities, towns and state agencies would be required to appoint at least one records access officer to assist with all public records requests, to facilitate compliance, to publicize the public records request process, and, beginning on July 1, 2017, begin posting commonly requested records on the municipal website.
• If feasible, future upgrades to databases and computer systems should include enhancements to make it easier to comply with public records requests.
• If the record(s) exist in an electronic format, municipalities and state agencies would be required to provide the record(s) in that format or in a commonly used electronic format if so requested by the person filing the records request.
• If passed by the Legislature and signed by the Governor, the new public records law would take effect on January 1, 2017. The Secretary of State would be required to promulgate new regulations on the law by January 1, 2017 at the latest.

Please Call Your Legislators Today to Discuss the Public Records Legislation and Express Your Concerns.

Thank You Very Much.