High Costs Make Open Records Seem Closed
From Sunshine Review
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September 24, 2009 The high costs for fulfilling Freedom of Information Act requests make open records feel like they are closed to the general public.[1]
[edit] Somerville requests
Last month Barry Rafkind, the volunteer editor of a Somerville news blog, sent a detailed request to city officials for information about parking tickets and the city’s responses to citizen complaints.
Somerville officials told Somerville Voices they would provide the information for more than $200,000 for officials to review the documents, delete personal information, and print them out.
“I guess they expect me to go away now,’’ said Rafkind, 28, of Somerville Voices. “Those are prohibitive costs that no one could afford to pay. They’re making no effort to respond to my request with good will.’’
Rafkind’s request was unusually broad, as he asked for all of the city’s electronic data on parking tickets, appeals, and towing contracts, among other items. According to average citizens and professional reporters, public agencies have increasingly flouted the state’s public records law by delaying records or by charging large fees.[1]
[edit] Globe to Boston requset
In earlier 2009, Boston Globe asked Boston city officials for the e-mails of six city officials. The city said it would cost $30,000.
The Globe then narrowed its request, saying it learned that Michael Kineavy, a senior aide to Mayor Thomas M. Menino, had been routinely deleting his e-mail, a violation of Massachusetts public records law. The missing e-mails emerged as a pivotal issue in the mayoral campaign.
The Secretary of State William F. Galvin’s office, the office responsible for enforcing the public records law, said it is usually ordinary individuals that make the complaints about violations with little hope of raising the money government agencies charge.
The charges sometimes cover some of the cost of paying staff, including government attorneys, as well as for finding, reviewing, and producing documents during difficult economic times. However, some agencies have responded to detailed requests at no charge.
Galvin said the number of complaints made by those trying to use the public records law is rising.
“Many of the initial complaints are from average citizens,’’ Galvin said. “A lot of it is town politics, but that doesn’t matter. If someone wants to know who got the doughnut contract with the local schools, they should be able to find out.’’
Galvin said the secretary of state’s office has virtually no power to enforce the open records law and there are no civil penalties to levy against government officials or agencies that violate it.
“When you have a recalcitrant record-keeper, you have a real problem,’’ Galvin said.[1]
[edit] Florida
Florida is a model for protecting the public’s right to government documents after 87 percent of voters passed a 1992 amendment to the state constitution.
Tom Fiedler, dean of the College of Communication at Boston University and a former executive editor at The Miami Herald, said have much better and more pain-free access to public records in Florida than in Massachusetts.
“What I have seen here strikes me as so contrary to my experience in Florida that I’m actually startled by it,’’ Fiedler said. “I don’t know why the citizens of Massachusetts tolerate it.’’
“They don’t have to comply with his orders, so they treat them like advisory opinions,’’ Jon Albano said. “Across the state, government officials really and truly do not take the public records law as seriously as they take their other responsibilities.’’
Albano is a First Amendment lawyer who often represents the Globe in battles for public records.
Albano said enforcement of the law would be enhanced by a streamlined process for hearing public records disputes in the courts.
Because Galvin cannot find or discipline uncooperative offcials, he relies on the attorney general’s office. The attorney general's office is often reluctant to take action against state agencies in public records cases. The office represents those same agencies in other legal matters.
If the attorney general declines to act, the cases move to court, which is far more expensive than most fees.
Massachusetts reporters think the fees are the government officials' way of discouraging interest in the material.
“It’s gotten worse and worse,’’ said Joe Bergantino, director of the New England Center for Investigative Reporting at Boston University. “I think it has to do in part with the perception of some government agencies that, as media organizations deal with financial problems, high dollar amounts for public records will drive us away.’’[1]
[edit] Efforts for records
A large state agency gave Bergantino an fees estimate of $6,600 in response to his requests to review the e-mails of several senior officials. The price was apparently for finding the documents, printing them, and reviewing them for personal information that might be exempt from the public records law.
“It’s clearly a way of saying, ‘We’re going to make this as difficult as possible for you, and we’d like you to just go away,’ ’’ Bergantino said.
Officials often say delays and fees can be explained by staff needed to find and censor the information.
“They should be more specific,’’ Menino said. “Some of them just throw out a wide net.’’
Tom Champion, spokesman for the City of Somerville, said that the broadness of his request and the need to delete personal information from the records, brings charges to more than $200,000.
“It is a lot because of the way we are mandated to respond to public records requests,’’ Champion said, adding that staff reductions have made the job even more difficult. “We’re all trying to do more with less.’’
Under Massachusetts public records law, there are sets out 16 specific exemptions, which include personal medical information, information about ongoing criminal investigations, and information being used by government officials to reach policy decisions. The exemptions are often debated.
In 1989, the Supreme Judicial Court ruled that autopsy reports fall under the medical records exemption. The case arose after the Globe initiated an investigation into the deaths of three prison inmates at Bridgewater State Hospital.
More recently, in 2004, a Superior Court judge ruled that arrest warrants for individuals charged with committing violent crimes are exempt from the public records law, asserting the privacy rights of accused at-large criminals, another case initiated by the Globe.[1]
[edit] External links
- Boston Globe website
- Boston University website
- New England Center for Investigative Reporting website
[edit] References
- ↑ 1.0 1.1 1.2 1.3 1.4 "High costs can make open records seem closed," Boston Globe, September 24, 2009
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