After a year of intense debate, legislation overhauling the state’s public records law for the first time in over 40 years was signed by Gov. Charlie Baker on June 3rd (becoming Chapter 121 of the Acts of 2016, the “Act”). The provisions of the Act took effect on January 1, 2017. The Act sets new time frames that must be complied with to produce public records, exempts from reimbursement a portion of employee time spent performing records requests, and allows requestors to appeal directly to superior court to compel compliance. It does not change any of the currently applicable exemptions to the definition of a public record.
The Act applies to all state agencies and municipalities (“Public Entity” or “Public Entities”)–including Commonwealth and Horace Mann charter schools–but the requirements applicable to state and local entities differ in important ways. Although the Act does not address the distinction between the two types of charter schools, it is reasonable to interpret the state agency requirements as applicable to Commonwealth charters and the municipal requirements to Horace Mann schools.
Schools are required to designate a records access officer (“RAO”) who is responsible for timely fulfilling records requests, documenting all requests, assisting the requester throughout the process, and preparing guidelines that inform persons seeking access to records of the availability of such records electronically or otherwise. Public records must be produced electronically unless the record is not available in electronic format or the requester does not have the ability to receive or access the records in a usable electronic form.
Public Entities also need to make available on their website searchable electronic copies of several types of public records, including:
- Final opinions, decisions, orders or votes from agency proceedings.
- Annual reports.
- Notices of regulations proposed under Chapter 30A of the General Laws.
- Notices of hearings.
- Winning bids for public contracts.
- Awards of federal, state and municipal government grants.
- Minutes of open meetings.
- Agency budgets.
- Any public record information of significant interest that the agency deems appropriate to post.
Compliance Timeframes–Ten Business Day Rule
Schools must permit inspection or provide a copy of a requested public record within 10 business days from the date the request was made, provided that the RAO receives payment of a reasonable fee, the public record is within the RAO’s possession, and the request reasonably describes the record sought. Situations may arise where the Public Entity does not intend to produce the record, or the request unduly burdens the Public Entity (due to the magnitude of the request or multiple requests) so that it cannot timely comply. In such cases, the Public Entity must inform the requestor in writing no later than 10 business days after the receipt of the request. This response must comply with all of the following:
- Confirm receipt of the request.
- Identify the public records or categories thereof that are not within the possession of the School.
- Identify the Public Entity that may be in possession of the record sought, if known.
- Identify any records or categories that the School intends to withhold and provide specific reasons for withholding, including the exemption relied upon.
- Identify any public records or categories thereof that the School intends to produce, and a detailed statement describing why the magnitude or difficulty of the request is unduly burdensome thereby requiring additional time.
- Identify a reasonable time frame in which the public record will be produced. This time frame cannot exceed 15 business days in the case of an agency, and cannot exceed 25 business days in the case of a municipality (including Horace Mann schools), unless the requestor agrees to extending such time frames voluntarily.
- Suggest a reasonable modification of the scope of the request or assist the requestor to modify the scope of the request if doing so would make for greater efficiency and affordability.
- Include an itemized, good faith estimateof any fees.
- Include a statement informing the requester of the right to seek administrative and judicial appeal of an unfavorable decision.
Within 20 business days from the receipt of the request, or within 10 business days from a determination of the Supervisor of Public Records (“Supervisor”) that the record sought is a public record, the RAO may petition the Supervisor for an extension of time to furnish the record if the request unduly burdens the School due to the magnitude or difficulty of the request or if the requester has made multiple requests.
Fees
The Act also makes several change regarding the collection of fees that Schools may charge for fulfilling records requests. A RAO may assess a “reasonable fee” for producing a public record unless the record requested is freely available to the public and such fee cannot exceed the actual cost of producing the record. They may charge the actual cost of a storage device or materials as part of the fee and not more than 5¢ per page for black and white paper copies or printouts. This reduced fee schedule had previously been established pursuant to emergency regulations promulgated by the Secretary of State on February 29, 2016; see 950 CMR 32.06. The Act exempts the first four hours of employee time for Commonwealth charters and the first two hours of employee time for Horace Mann charters, from reimbursement and caps the hourly rate thereafter at $25. In either case, the full amount of employee time is reimbursable if such time is spent redacting or segregating records if required (not permitted) by law and if approved by the Supervisor. Employee time includes the use of vendors, including outside legal counsel.
A Public Entity may petition the Supervisor to exceed these limitations or to charge for redaction and segregation time. Such petition may be approved if the Supervisor determines that the request is for a commercial purpose or the fee represents an actual and good faith representation by the School to comply with the request, the fee is necessary such that the request could not have been prudently completed without the redaction, segregation or fee in excess of the $25 per hour cap and the fee is reasonable and not designed to limit, deter or prevent access to the record. The RAO may deny public records requests from any requestor who has failed to compensate the Public Entity for previously produced records.
Conclusion
The Act makes significant changes to the prior public records law, particularly in the areas of compliance obligations, records management, response time frames, response fees, and enforcement. Additional details relating to public records requests are contained in the Act and not covered in this article. These changes will need to be carefully understood by all charter schools due to the prevalence of requests for public records.
Should you have any questions regarding the Act or the requirements applicable to your School, please contact Anatoly M. Darov. Darov & Associates US is available to assist charter schools with the development of public records guidelines as required by the new Act, assist with evaluation of public record management practices, implement changes to comply with the Act, and assist Schools with responding to complex public records requests.