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December 19, 2016

Legal Update
Kate R. Cook

Three things you need to know about changes in Massachusetts’s public records law

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On January 1, 2017, for the first time in over four decades, the Massachusetts public-records law will undergo a significant overhaul. Chapter 121 of the Acts of 2016 substantially alters the state’s public-records landscape and the requirements for compliance. Here are three major changes to the public-records law that you should know about:

1. Enforcement

Starting January 1, 2017, if a records-requester prevails in a lawsuit over a rejected public-records request, the superior court may award reasonable attorney’s fees and costs. The new law establishes a presumption in favor of such awards, except in cases where:

  1. the Supervisor of Public Records found no violation of the law;
  2. an agency or municipality based its denial of the records request on a published Massachusetts appellate opinion;
  3. an agency or municipality based its denial on a published opinion of the Attorney General;
  4. the request was made to harass or intimidate; or
  5. the request was not in the public interest and was made for a commercial purpose unrelated to disseminating information to the public about actual or alleged government activity.

If a judge determines that an award of reasonable attorney’s fees or costs is not warranted, she must issue written findings specifying the reasons for the denial. In addition, if the court finds that the agency or municipality did not act in good faith in withholding or failing to produce the requested record, or assessing an unreasonable fee, the court may award punitive damages of not less than $1,000 and no more than $5,000. These awards will fund the new Public Records Assistance Fund, created to help provide cities and towns with information-technology tools to facilitate compliance with the public records law.

2. Timing

Agencies and municipalities will now be required to respond substantively to public records requests within 10 business days. If the agency or municipality cannot produce the records within 10 business days, it must respond in writing within that period and either give the reason for withholding the records or offer a reasonable timeframe in which the records will be produced. This timeframe cannot exceed 15 business days from the date of the request for agencies and 25 business days for municipalities. Agencies and municipalities that need additional time may petition the Supervisor of Public Records for an additional limited extension.

3. Fees

Agencies may not charge any fee for the first four hours of employee time spent in responding to a records request. Municipalities with populations over 20,000 may not charge for the first two hours of response time. After this, there is a $25-per-hour cap on the fee that may be charged for labor in fulfilling records requests, although municipalities may request permission to charge higher fees. Unless required by law, employee time spent redacting or segregating records may not be charged. The law also caps fees for copies at five cents per page. No fee may be charged if the agency or municipality fails to respond to a request within 10 business days.

For more information, please contact Kate Cook, chair of Sugarman Rogers’s Government Law practice group, at 617-227-3030 or cook@srbc.com.

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