Auditing the New Transparency Law: Where are the Records Access Officers?
With the advent of the Baker administration, Massachusetts transparency advocates were optimistic that the statute governing public records requests would be among the laws targeted for overhaul. The optimism proved somewhat warranted as the legislature and Governor Baker were able to reach an agreement on a long-overdue update to procedures relating to the release of public records.
Pioneer has long been a critic of Massachusetts’s records laws, highlighting exemptions and the poor records compliance of the MBTA – while continuing to recommend additional action. Reform was clearly needed, as Massachusetts has consistently ranked at the bottom of the list in government transparency. In the past, the commonwealth has treated the public records law as more of a suggestion, as demonstrated by a comprehensive survey of response time taken by a Northeastern University journalism class, in which 58 percent of all municipalities failed to respond within the mandated 10-day time frame; and the running average response time compiled by MuckRock, which currently averages 67 days. Named ‘An Act to Improve Public Records’, the bill was signed on June 3, 2016 to address this disparity.
Effective January 1, 2017, the statute requires that all agencies designate one or more resource access officer(s) (RAOs), with the responsibility to facilitate public record requests, coordinate responses, and prepare and disseminate guidelines for records requests. The contact information of these officers must be “conspicuously” posted at their respective offices and websites. The statute applies to all municipalities and agencies identified in clause twenty-six of section 7 of chapter 4 of the General Laws.
Pioneer Institute was curious to determine the level of compliance with this provision of the law, and the results of our examination show state agencies’ compliance to be problematic. Of a random sample of 20 state agencies that process public record requests, six, or 30 percent of all agencies examined, did not display contact information for their designated RAOs on their website.
|Boston Election Department||No|
|Department of Environmental Protection||Yes|
|Department of Higher Education||Yes|
|Department of Industrial Accidents||Yes|
|Department of Public Health||Yes|
|Department of Revenue||Yes|
|Executive Office of Labor and Workforce Development (EOLWD)||Yes|
|Holyoke Community College||Yes|
|Lowell Regional Transit Authority||No|
|Massachusetts Convention Center Authority||No|
|Massachusetts District Attorneys Association||Updating*|
|Massachusetts Office of Information Technology||Yes|
|Massachusetts Port Authority||Yes|
|Middlesex Community College||Yes|
|Office of Consumer Affairs and Business Regulation||Yes|
|Quinsigamond Community College||No|
|Springfield Technical Community College||Yes|
|University of Massachusetts, Amherst Police Department||Yes|
More troubling is the fact that only two of the six non-compliant agencies were able to provide us with the name of their RAO. At the time of publication, the other four had yet to return our calls. The violators include the State Ethics Commission, Boston Election Department, Quinsigamond Community College, and the Massachusetts Convention Center Authority.
The non-compliant state agencies would do well to examine the example set by the Governor’s Office. Clearly identifiable on the webpage, the RAO contact information is easily accessible. The Governor’s office has also set up an independent email for the RAO to deal strictly with requests; other agencies would be prudent to replicate this practice.
Municipalities have similar requirements under the new public records law, but with differing responsibilities. Under the statute, municipal clerks are designated as RAOs, but can designate additional records access officers. In the interest of transparency, encouraging clerks to exercise this power would be useful. Designating specialized RAOs to help coordinate and facilitate records requests from the various departments under the municipal jurisdiction would be more responsive and fruitful. Of the towns surveyed, only Manchester-by-the-Sea, Hardwick, Littleton, Marblehead, Rehoboth, West Boylston, and Woburn have named additional RAOs to assist the municipal clerk. The following municipalities have demonstrated an especially proactive approach, and represent models that should be emulated:
West Boylston has three RAOs in addition to the town clerk. In this model, the fire department, police department, and the public schools have RAOs with required contact information prominently provided. All other requests are clearly designated as falling under the purview of the clerk.
Rehoboth’s town clerk is designated as the chief RAO, but there are 17 others, one for each of the following departments: Accounting, Animal Control, Assessor’s, Board of Health, Building Department, Chief and Town Clerk’s Office, Council on Aging- Senior Center, Fire Department, Highway, Planning and Conservation Commission, Police Department, Selectmen’s Office, Tax Collector’s Office, Treasurer’s Office, Tree Warden, Veteran’s Services, and the Zoning Board Authority. **
There were problems among the municipalities examined. The statute dictates that the “business email address” of all RAOs be provided, yet a quarter of the municipalities failed to do so. Several rely on forms to submit requests rather than providing direct contact information. This is contrary to the spirit of the reform, as it curtails transparency and eliminates the possibility of seamless exchange between agencies and individuals requesting records by preventing follow-up emails or the attachment of documents.
Transparency is the hallmark of a healthy democracy because of the public engagement that flows from it. Public records reform brings Massachusetts a bit closer to that ideal. Now we just have to get public agencies to comply with the law.
*When Pioneer asked the Massachusetts District Attorney’s Association about its compliance with the provision, the Association informed us that its website was in the process of being updated.
**Despite the positive aspects of this model, Rehoboth is noncompliant in its failure to provide contact information for each RAO. Instead, all requests are processed by the town clerk before being forwarded to the specified RAO.