Ed Law Update: New Public Records Law Enacted
SCHOOL DISTRICTS SHOULD CONSIDER TAKING PRELIMINARY STEPS NOW TO PREPARE FOR THE JANUARY 1, 2017 IMPLEMENTATION OF THE NEW STATE PUBLIC RECORDS LAW.
The amended state public records law, Chapter 121 of the Acts of 2016, will significantly change the manner in which school districts (“Districts”) and other public entities must respond to requests for public records. The law also establishes new enforcement mechanisms to increase accountability. Below are steps that can be taken now to ensure a smooth transition to the January 1, 2017 implementation, as well as an overview of changes in the law.
1. Designate a “Records Access Officer.”
Prior to implementation of the law, each public school district should designate at least one point person to be responsible for responding to public records requests. Under the new law, this person is the “Records Access Officer.” The name, title, business address, business phone number and business email address of each Records Access Officer must be posted on the District’s website and in a conspicuous location within the District’s offices.
2. Ensure that the District’s Records Access Officer is fully informed about his/her duties and the new requirements of the law.
The duties of the Records Access Officer are established by state statute, and include:
° Coordinate the District’s response to public records requests;
° Assist individuals who seek records to identify the records sought;
° Assist the custodian of records to preserve public records in accordance with the law;
° Prepare, post online (by July 1, 2017), and periodically update guidelines (which include a list of categories of public records maintained by the District) to enable the public to make informed public records requests; and
° Document, in compliance with c. 66, § 6A(e), specific information about each request made for public records.
3. Ensure that all staff know who the District’s Records Access Officer is, and ensure that all staff who may receive public records requests are knowledgeable about the new law.
Given that requests for public records may not always be directed to a District’s Records Access Officer, all staff need to know the identity of the Records Access Officer before January 1, 2017, and all staff should be generally knowledgeable about the changes in the law.
Overview of Changes
Below is a brief synopsis of noteworthy changes in the law.
1. Production in Electronic Format
Photocopying and mailing public records will no longer be the norm. Records must be provided to a requestor by electronic means unless the record is not available in electronic format or the requestor does not have the ability to access them electronically.
2. Longer, but Stricter, Time Frames to Respond
Initial Response within Ten (10) Business Days Timeliness will be critical. Districts should note that although the initial response is now due within ten (10) business days instead of ten (10) calendar days, compliance with the legal provisions of this initial response is essential. Failing to timely provide the initial response will result in, at a minimum, an inability to charge any fees for the records request. This initial response may be: (a) the production of some/all of the records requested; and/or (b) notice of intent not to furnish certain records; and/or (c) notice of an inability to furnish records within ten (10) business days.
The general rule is that the records themselves must be furnished within ten (10) business days, but there are a few exceptions. When an exception does apply, the Records Access Officer must notify the requestor in writing, still within ten (10) business days of the request, of several specific details, including: which documents are being withheld and why; which documents are not within the District’s possession, custody or control; which documents will be furnished; a good faith estimate of any fees that may be charged for the production of the records; a reasonable timeframe in which the records will be provided – which may not exceed twenty-five (25) business days from the initial request; and a statement regarding the requestor’s appeal rights.
To have more than twenty-five (25) business days to furnish records, a Records Access Officer must either negotiate an extension with the requestor or petition the supervisor of records for an extension based on good cause. Upon a showing of good cause, the supervisor of records may grant a single extension which may not exceed thirty (30) business days.
3. New Fee Structure
Importantly, as noted above, if the District fails to comply with the legal requirement to issue an appropriate initial response within ten (10) business days of the request, the District is barred from charging any fees for the production of the documents.
Document fees are now capped at five (.05) cents per page, whether the page is single-sided or double-sided. Additionally, the fees may not exceed the actual cost of reproducing the documents, and fees may not be charged for any records that are readily accessible to the public (i.e., on the District’s website).
Labor fees include time spent searching for, compiling, and reproducing a record, as well as time spent segregating and redacting when such segregation/redaction is either required by law or approved by the supervisor of records. Labor time of District employees, necessary vendors, and outside legal counsel (who will typically review records to identify necessary redactions), are relevant to the calculation. As a starting point, if the District is in a municipality with a population over 20,000, then there may be no charge for the District’s first two (2) hours of labor. If the District is in a municipality with a population under 20,000, every hour of labor counts.
Generally, labor costs in any District may not exceed $ 25.00 per hour. Exceptions apply, but to charge a fee greater than $ 25.00 per hour, the District must petition the supervisor of records, explain why a higher hourly rate is both necessary and reasonable, and seek approval for the higher rate.
4. Presumption of Attorney’s Fees
Prior to this amendment of the Public Records Law, requestors had little recourse when a public entity was unresponsive, in that little could be done to penalize public entities who failed to comply, other than the issuing of an order for the public entity to comply. The amended law has teeth.
As before, requestors may petition the supervisor of records for a determination of whether the District has violated a provision of the law. Notably, there are many more legal provisions to now follow. Failure to provide an appropriate initial response, failure to comply with the statutory timeframes, charging fees beyond that which is permitted under the law, and withholding documents that should have been produced are all examples of issues on which a petition might be filed. Within ten (10) business days of receiving the petition, the supervisor of records will make a determination and award relief when appropriate.
Judicial review in superior court may be sought by a requestor who either does not receive a timely determination from the supervisor of records or who receives an unfavorable determination.
Attorney General involvement continues to exist as part of the enforcement mechanism of the public records law. The Office of the Attorney General will have a designated point person to serve as a consultant to the supervisor of records, who can be notified by the supervisor of records of any matters of non-compliance. The Attorney General may intervene in any court matter related to this statute, and may file a complaint on its own initiative to ensure compliance with the statute.
The most significant change in regards to enforcement is that non-compliance can lead to a judicial award of attorney’s fees and litigation costs to be paid by the public entity to the requestor, thus incentivizing public entities to comply with the law. A similar provision already exists in (47) forty- seven other states. Massachusetts has been an outlier by not having a meaningful enforcement mechanism in its public records law.
In the revised law, there is a built-in statutory presumption that attorney’s fees and costs will be awarded in any case in which a requestor obtains relief through: (1) a judicial order; (2) a consent decree; or even (3) the voluntary provision of the sought records by the District following the filing of a Superior Court complaint. The onus will always be on the District to overcome this presumption. Additionally, when bad faith is found, an order for the District to pay punitive damages may be entered, up to $5,000, to be deposited into the Public Records Assistance Fund.
Clearly, it is in each District’s best interests to be well-informed of the above details prior to the start of 2017, so that when the first public records request of the new year arrives, the response will be smooth, effective, and in compliance with the law.