Amendment 1

SENATE . . . . . . . . . . . . . . No. 2120

The Commonwealth of Massachusetts

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In the One Hundred and Eighty-Ninth General Court
(2015-2016)

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SENATE, January 28, 2016.

The committee on Ways and Means, to whom was referred the House Bill to improve public records (House, No. 3858),-- reports, recommending that the same ought to pass with an amendment striking out all after the enacting clause and inserting in place thereof the text of Senate document numbered 2120; and by striking out the title and inserting in place thereof the following title:- “An Act improving the administration and enforcement of the public records law”.

For the committee,
Karen E. Spilka

SENATE . . . . . . . . . . . . . . No. 2120

The Commonwealth of Massachusetts

_______________

In the One Hundred and Eighty-Ninth General Court
(2015-2016)

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SECTION 1. Subsection (n) of clause Twenty-sixth of section 7 of chapter 4 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting, in line 226, after the word “transportation” the following words:- , cyber-security,.

SECTION 2. Said subsection (n) of said clause Twenty-sixth of said section 7 of said chapter 4, as so appearing, is hereby further amended by striking out, in line 229, the words “ (b) of section 10” and inserting in place thereof the following words:- (a) of section 10A.

SECTION 3. Said subsection (n) of said clause Twenty sixth of said section 7 of said chapter 4, as so appearing, is hereby further amended by striking out, in line 230, the word “safety” and inserting in place thereof the following words:- safety or cyber-security.

SECTION 4. Said section 7 of said chapter 4, as so appearing, is hereby further amended by striking out, in line 269, the word “ten” and inserting in place thereof the following word:- 10A.

SECTION 5. Chapter 66 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting after section 1 the following section:-

Section 1A. The supervisor of records shall create educational materials or guides and may make available training to an agency or municipality in order to foster awareness and compliance with this chapter. The supervisor of records shall make the materials or guides available at no cost on a website operated by the secretary of the commonwealth. Upon request and to the extent feasible, the supervisor of records shall assist each agency and municipality to develop best practices to facilitate compliance with this chapter and to promote access to public records.

SECTION 6. Section 3 of said chapter 66, as so appearing, is hereby amended by inserting after the words “microphotographic process”, in line 12, the following words:- , or by electronic means.

SECTION 7. Said chapter 66 is hereby further amended by inserting after section 6 the following section:-

Section 6A. (a) Every agency and municipality shall designate 1 or more employees as records access officers. In a municipality, the municipal clerk or any persons the clerk may designate, shall serve as a records access officer, and the local chief executive officer or chief administrative officer, as defined in section 7 of chapter 4, may appoint additional records access officers. For the purposes of this chapter the term “agency” shall mean any entity, other than a municipality, that is identified in clause Twenty-sixth of section 7 of said chapter 4 as possessing public records.

(b) A records access officer shall coordinate an agency’s or a municipality’s response to requests for access to public records and shall facilitate the resolution of such requests by the timely and thorough production of public records. Each officer shall further: (i) assist persons seeking public records to identify the records sought; (ii) assist the custodian of records in preserving public records in accordance with all applicable laws, rules, regulations and schedules; and (iii) prepare guidelines or reference materials that enable a person seeking access to public records in the custody of the agency or municipality to make informed requests. The guidelines or reference materials shall be updated periodically and shall include a list of categories of public records maintained by the agency or municipality and a list and description of pertinent databases and record keeping systems maintained by the agency or municipality the contents of which are public records. Each agency that maintains a website shall post such guidelines or reference materials on its website.

(c) Each agency and municipality shall post in a conspicuous location at its offices and on its website, if any, the name, title, business address, business telephone number and business email address of each records access officer. The designation of 1 or more records access officers shall not be construed to prohibit other authorized employees from responding to public record requests, making public records or information available to the public, or from otherwise taking actions necessary to comply with this chapter; provided, that such employees shall act in accordance with the law.

(d) Public records shall be provided to a requestor by electronic means unless otherwise requested or unless the record is not available in electronic form. The records access officer shall, to the extent feasible, provide the public record in the requestor’s preferred format and in a searchable, machine readable format. The records access officer shall not be required to create a new public record in order to comply with a request. If the public record requested is available on a public website pursuant to subsection (b) of section 19, section 14C of chapter 7, or any other appropriately indexed and searchable public website, the records access officer may furnish the public record by providing reasonable assistance in locating the requested record on the public website.

(e) Each records access officer of an agency shall document each request for public records submitted to the records access officer. The records access officer shall document (i) the nature of the request and the date on which the request was received; (ii) the date on which a response is provided to the requestor; (iii) the date on which a public record is provided to the requestor; (iv) the number of hours required to fulfill the request; (v) fees charged to the person making the request, if any; (vi) petitions submitted under clause (iv) of subsection (d) of section 10: (vii) requests appealed under section 10A; (viii) the time required to comply with supervisor of records orders under said section 10A; and (ix) the final adjudication of any court proceedings under subsection (d) of said section 10A. Nothing in this subsection shall require a records access officer to disclose information otherwise protected from public access. The secretary of the commonwealth shall prescribe a form for recording such information and shall annually collect the information from the records access officers, post the information on a website maintained by the secretary and report the same to the clerks of the house of representatives and senate.

(f) The supervisor of records shall document requests for public records appealed to the supervisor of records by the requestor. The supervisor of records shall document: (i) the date the request was submitted to the records access officer; (ii) the date the records access officer responded; (iii) the amount of fees charged to the requestor, if any; (iv) petitions under clause (iv) of subsection (d) of section 10; (v) the time required to comply with supervisor of records orders under said section 10A; and (vi) the final adjudication of any court proceedings under subsection (d) of said section 10A. Nothing in this subsection shall require the supervisor to disclose information otherwise protected from public access. The secretary of the commonwealth shall prescribe a form for recording such information and shall post the information on a website maintained by the secretary.

SECTION 8. Said chapter 66 is hereby further amended by striking out section 10 and inserting in place thereof the following 3 sections:-

Section 10. (a) A records access officer appointed pursuant to section 6A, or a designee, shall, at reasonable times and without unreasonable delay, permit inspection or furnish a copy of any public record, as defined in clause Twenty-sixth of section 7 of chapter 4, or any segregable portion of a public record, not later than 15 calendar days following the receipt of the request if: (i) the request reasonably describes the public record sought; (ii) the public record is within the possession, custody or control of the agency or municipality that the records access officer serves; and (iii) the records access officer receives payment of a reasonable fee as set forth in subsection (d).

(b) If the magnitude or difficulty of the request, or the receipt of multiple requests from the same requestor, unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality is unable to permit inspection or furnish a copy of a requested public record within 15 calendar days, the records access officer shall, not later than 10 calendar days following the initial receipt of a request for public records, issue a written response to the person who submitted the request. The written response shall be made via first class or electronic mail and shall include the following:

(i) confirmation of the receipt of the request;

(ii) identification of any known public records or categories of public records that the agency or municipality intends to produce and any, known records, categories of records, or any portion of a record, that the agency or municipality intends to withhold accompanied by specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based; provided, that nothing in the written response shall limit an agency’s or municipality’s ability to redact or withhold information in accordance with state or federal law;

(iii) identification of any public record sought that does not exist or is not within the possession, custody or control of the agency or municipality that the records access officer serves and, if known, identification of the agency or municipality who may be in possession, custody or control of the public record sought;

(iv) a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public record sought;

(v) an itemized estimate of any fees that may be charged to produce the records;

(vi) a reasonable time in which the agency or municipality shall produce the public records sought but this time shall not exceed 30 calendar days following the initial receipt of the request for public records unless the agency or municipality and the requestor agree, in writing, to establish a time beyond 30 calendar days of the initial receipt of the request;

(vii) a proposed reasonable modification of the scope of the request or an invitation to assist the person making the request for public records to modify the scope of the request in order to produce records sought more efficiently and affordably; and

(viii) a statement informing the requestor of the right of appeal to the supervisor of records under subsection (a) and to superior court under subsection (c) of section 10A.

(c) If the magnitude or difficulty of a request , or the receipt of multiple requests from the same requestor, unduly burdens the other responsibilities of the agency or municipality such that an agency or municipality is unable to complete the request within the time provided in clause (vi) of subsection (b), a records access officer may, as soon as practical and within 20 calendar days after initial receipt of the request, or within 5 calendar days after receipt of a determination by the supervisor of public records that the requested record constitutes a public record, petition the supervisor of records for an extension of the time for the agency or municipality to furnish copies of the requested record, or any portion of the requested record, that the agency or municipality has within its possession, custody or control and intends to furnish. The records access officer shall, upon submitting the petition to the supervisor of records, furnish a copy of the petition to the requestor. Upon a showing of good cause, the supervisor of records may grant a single extension not to exceed 30 calendar days. In determining whether the agency or municipality has proven good cause, the supervisor of records shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. If the supervisor of records determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the supervisor of records may grant an extension beyond 30 calendar days. The supervisor of records shall issue a written decision regarding a petition submitted by a records access officer under this subsection within 7 calendar days following receipt of the petition and shall provide the decision to the agency or municipality and the requestor and shall inform the requestor of the right to appeal an unfavorable decision to the superior court.

(d) A records access officer may charge a reasonable fee for a public record. The reasonable fee shall not exceed the actual cost of reproducing the record. Unless expressly provided for otherwise, the fee shall be determined in accordance with the following provisions:

(i) the actual cost of any storage device or material provided to a person in response to a request for public records under subsection (a) may be included as part of the fee; but the charge for standard black and white paper copies or printouts of records shall not exceed 5 cents per page, for both single and double-sided black and white copies or printouts;

(ii) if an agency is required to devote more than 4 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested, the records access officer may also include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce the record or records requested, but the fee shall not be more than $25 per hour and an agency shall not charge for the first 4 hours of work performed. An agency shall not charge for time spent segregating or redacting unless such segregation or redaction is required by law or approved by the supervisor of records under clause (iv);

(iii) if a municipality is required to devote more than 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested, the records access officer may also include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce the record or records requested, but the municipality shall not charge more than $25 per hour unless such rate is approved by the supervisor of records under clause (iv); provided, however, that a municipality shall not charge for the first 2 hours of work performed or time spent segregating or redacting unless such segregation or redaction is required by law or approved by the supervisor of records under clause (iv);

(iv) the supervisor of records may approve a petition from an agency or municipality to charge for time spent segregating or redacting, or a petition from a municipality to charge in excess of $25 per hour, if the supervisor of records determines that: (1) the charge represents an actual and good faith representation by the agency or municipality to comply with the request; (2) the charge is necessary such that the request could not have been prudently completed without the redaction, segregation or charge in excess of $25 per hour; and (3) the charge is not designed to limit, deter or prevent access to requested public records. An agency or municipality, upon submitting a petition under this clause, shall furnish a copy of the petition to the requestor. The supervisor of records shall issue a written determination regarding such a petition within 7 calendar days following receipt of the petition by the supervisor of public records. The supervisor of records shall provide the determination to the agency or municipality and the requestor and shall inform the requestor of the right to appeal an unfavorable decision to the superior court; and

(v) the records access officer may waive or reduce the amount of any fee under this subsection upon a showing that disclosure of the requested record or records is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester, or upon a showing that the requester lacks the financial ability to pay the full amount of the reasonable fee.

A records access officer shall not charge a fee for a public record unless the records access officer furnished the public record in 15 calendar days under subsection (a) or responded to the requestor in 10 calendar days under subsection (b).

Section 10A. (a) If an agency or municipality fails to comply with a requirement of section 10 or issues a response the requestor believes in violation of section 10, the person who submitted the initial request for public records may petition the supervisor of records for a determination as to whether a violation has occurred. In assessing whether a violation has occurred, the supervisor of records may inspect any record or copy of a record in camera. The supervisor of records shall issue a written determination regarding any petition submitted in accordance with this section not later than 15 calendar days following receipt of the petition by the supervisor of records. Upon a determination by the supervisor of records that a violation has occurred, the supervisor of records shall order timely and appropriate relief. A requestor, aggrieved by an order issued by the supervisor of records or upon the failure of the supervisor of records to issue a timely determination, may obtain judicial review only through an action in superior court seeking relief in the nature of certiorari under section 4 of chapter 249 and as prescribed in subsection (d).

(b) If an agency or municipality refuses or fails to comply with an order issued by the supervisor of records, the supervisor of records shall notify the attorney general, who, after consultation with the supervisor of records, may take whatever measures the attorney general considers necessary to ensure compliance. If the attorney general files an action to compel compliance, the action shall be filed in Suffolk superior court with respect to state agencies and, with respect to municipalities, in the superior court of the county in which the municipality is located. The attorney general shall designate an individual within the office of the attorney general to serve as a primary point of contact for the supervisor of records. In addition to any other duties the attorney general may impose, the designee shall serve as a primary point of contact within the office of the attorney general regarding notice from the supervisor of records that an agency or municipality refuses or fails to comply with an order issued by the supervisor of records.

(c) Notwithstanding the procedure in subsections (a) or (b), a requestor may initiate a civil action to enforce the requirements of this chapter. Any action under this subsection shall be filed in Suffolk superior court with respect to agencies and, with respect to municipalities, in the superior court in the county in which the municipality is located. The superior court shall have available all remedies at law or in equity, provided that any damages awarded shall be consistent with subsection (d).

(d)(1) In any action filed by a requestor pursuant to this section:

(i) the superior court shall have jurisdiction to enjoin agency or municipal action;

(ii) the superior court shall determine the propriety of any agency or municipal action de novo and may inspect the contents of any defendant agency or municipality record in camera;

(iii) the superior court shall, when feasible, expedite the proceeding;

(iv) a presumption shall exist that each record sought is public and the burden shall be on the defendant agency or municipality to prove, by a preponderance of the evidence, that such record or portion of the record may be withheld in accordance with state or federal law.

(2) (i) The superior court shall award reasonable attorney fees and other litigation costs reasonably incurred to the requestor in any case in which the requestor has obtained relief through a judicial order or consent decree unless:

(A) the supervisor of records under subsection (a) found that the agency or municipal action did not violate this chapter or the agency or municipality reasonably relied on, based on similar facts, a published opinion by the supervisor of records or the attorney general;

(B) the agency or municipality reasonably relied upon a published opinion of an appellate court based on similar facts;

(D) the request was not in the public interest and made for a private or commercial purpose unrelated to disseminating information to the public about actual or alleged government activity.

If the superior court determines that 1 of the conditions exists under subclauses (A) through (D), the superior court may award reasonable attorney fees and other litigation costs reasonably incurred to the requestor.

(ii) When a requestor has obtained relief in a superior court case through a voluntary or unilateral change in position by the agency or municipality, if the requestor’s claim is not insubstantial, the superior court may award reasonable attorney fees and other litigation costs reasonably incurred to the requestor.

(iii) If a requestor has obtained relief under either (i) or (ii) of this clause, and the superior court determines that the assessment of reasonable attorney fees and other litigation costs reasonably incurred is not warranted, the judge shall issue written findings specifying the basis for not awarding reasonable attorney fees and other litigation costs reasonably incurred.

(3) If the superior court awards reasonable attorney fees and other litigation costs reasonably incurred to the requestor it shall order the agency or municipality to waive any fee assessed under subsection (d) of section 10. If the superior court does not award reasonable attorney fees and other litigation costs reasonably incurred to the requestor, it may order the agency or municipality to waive any fee assessed under said subsection (d) of said section 10. If the superior court determines not to order any fee assessed under said subsection (d) of said section 10 waived, it shall issue written findings specifying the basis for such denial.

(4) If a requestor has obtained judgment in superior court in a case under this section and has demonstrated that the defendant agency or municipality, in withholding or failing to timely furnish the requested record or any portion of the record, or in assessing an unreasonable fee, did not act in good faith, the superior court shall assess punitive damages against the defendant agency or municipality in an amount not less than $1,000 nor more than $5,000, to be expended to support the information technology capabilities of a municipality to foster best practices and facilitate compliance with this chapter.

(e) Notwithstanding any other provision of this chapter, the attorney general may, at any time, file a complaint in Suffolk superior court with respect to agencies and, with respect to municipalities, in the superior court in the county in which the municipality is located, to ensure compliance with this chapter and may further intervene as of right in any action filed in accordance with this section. In any action filed or in which the attorney general has intervened under this subsection, clauses (1) and (4) of subsection (d) shall apply and any public records the court orders produced shall be provided without a fee.

Section 10B. The commissioner of the department of criminal justice information services, the department of criminal justice information services and its agents, servants, and attorneys including the keeper of the records of the firearms records bureau of said department, or any licensing authority, as defined in section 121 of chapter 140, shall not disclose any records divulging or tending to divulge the names and addresses of persons who own or possess firearms, rifles, shotguns, machine guns and ammunition therefor, as defined in said section 121 of said chapter 140, and names and addresses of persons licensed to carry or possess the same to any person, firm, corporation, entity or agency except criminal justice agencies as defined in section 167 of chapter 6 and except to the extent such information relates solely to the person making the request and is necessary to the official interests of the entity making the request.

The home address and telephone number of law enforcement, judicial, prosecutorial, department of youth services, department of children and families, department of correction and any other public safety and criminal justice system personnel, and of unelected general court personnel, shall not be public records in the custody of the employers of such personnel or the public employee retirement administration commission or any retirement board established under chapter 32 and shall not be disclosed, but such information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180 or to criminal justice agencies as defined in said section 167 of said chapter 6. The name and home address and telephone number of a family member of any such personnel shall not be public records in the custody of the employers of the foregoing persons or the public employee retirement administration commission or any retirement board established under chapter 32 and shall not be disclosed. The home address and telephone number or place of employment or education of victims of adjudicated crimes, of victims of domestic violence and of persons providing or training in family planning services and the name and home address and telephone number, or place of employment or education of a family member of any of the foregoing shall not be public records in the custody of a government agency which maintains records identifying such persons as falling within such categories and shall not be disclosed.

SECTION 9. Said chapter 66 of the General Laws is hereby further amended by adding the following 2 sections:-

Section 19. (a) When designing or acquiring an electronic recordkeeping system or database, records access officers shall, consistent with section 17 of chapter 110G, consult with their chief executive officer, chief administrative officer or the Massachusetts office of information technology pursuant to chapter 7D to ensure, to the extent feasible, that the system or database is capable of providing data in a commonly available electronic, machine readable format. Such database designs or acquisitions shall allow for, to the extent feasible, information storage and retrieval methods that permit the segregation and retrieval of public records and redacting of exempt information in order to provide maximum public access. No agency or municipality shall enter into a contract for the storage of electronic records containing public records if the contract prevents or unduly restricts the records access officer from providing the public records in accordance with the requirements of this chapter.

(b) Every agency shall provide on a searchable website electronic copies, accessible in a commonly available electronic format, of the following types of public records: (i) final opinions, decisions, orders or votes from agency proceedings; (ii) annual reports; (iii) reports to the general court; (iv) notices of regulations proposed under chapter 30A; (v) notices of hearings; (vi) winning bids for public contracts; (vii) awards of federal, state and municipal government grants; (viii) minutes of open meetings; (ix) agency budgets; and (x) any public record information of significant interest or which could reasonably be anticipated to be the subject of multiple requests that the agency deems appropriate to post; provided, that any agency may withhold any record or portion of a record in accordance with state or federal law.

Section 20. For requests of payroll, financial and other data residing in the centralized state accounting and payroll systems, or associated data warehouses, the comptroller shall make available guidelines on how agencies using these systems may access and disclose public records to ensure that data that is exempted or prohibited from disclosure is not wrongfully disclosed and the security of the system is maintained.

SECTION 10. Municipal records access officers shall, to the extent feasible, post the guidelines or reference materials required under subsection (b) of section 6A of chapter 66 and the commonly available public record documents identified in subsection (b) of section 19 of said chapter 66 on a website maintained by the municipality.

SECTION 11. Notwithstanding any general or special law to the contrary, all damages paid pursuant to clause (4) of subsection (d) of section 10A of chapter 66 shall be directed to item 1599-0026 of the general appropriations act to support municipal improvements to the information technology capabilities of a municipality to foster best practices and facilitate compliance with chapter 66 of the General Laws.

SECTION 12. Pursuant to section 1 of chapter 66 of the General Laws, the supervisor of records shall adopt regulations necessary to implement this act. The regulations shall be adopted not later than September 1, 2016.

SECTION 13. Notwithstanding any general or special law to the contrary, this act shall not apply to public records requests submitted under section 10 of chapter 66 of the General Laws before the effective date of this act. Nor shall any obligation imposed by this act be enforceable or deemed relevant in any appeal pending before the supervisor of records or any court as of the effective date of this act.

SECTION 14. Section 7 shall take effect on July 1, 2016.

SECTION 15. Sections 1 to 6, inclusive, and 8 to 11, inclusive, of this act shall take effect on October 1, 2016.