High costs can make open records seem closed

By Michael Rezendes
Globe Staff / September 24, 2009

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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 said they would provide the information - but at a price. For the records Rafkind had in mind, the city wanted more than $200,000. Officials said that’s what it would cost 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.’’

Though Rafkind’s request was unusually broad - he asked for all of the city’s electronic data on parking tickets, appeals, and towing contracts, among other items - the response he received was hardly unique. Average citizens and professional reporters say public agencies have shown an increasing propensity to flout the state’s public records law by engaging in long delays or by charging exorbitant fees.

The tendency of government agencies to charge sky-high prices for public information came into play earlier this year when the Globe asked Boston officials for the e-mails of six city officials, and the city said it would cost $30,000. It wasn’t until the Globe narrowed its request that it learned that Michael Kineavy, a senior aide to Mayor Thomas M. Menino, had been routinely deleting his e-mail, in apparent violation of the state’s public records law. The missing e-mails have emerged as a pivotal issue in the mayoral campaign.

The Kineavy request was made by the Globe, but Secretary of State William F. Galvin’s office, which is responsible for enforcing the public records law, said most complaints about violations are made by ordinary individuals with little hope of raising the money government agencies often charge.

Some agencies attribute those charges to the cost of paying staff - including government attorneys - to find, review, and produce documents during difficult economic times when positions are being cut. On the other hand, some agencies have responded to even detailed requests by providing information at no charge.

In any case, 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.’’

The crux of the problem, according to Galvin and others, is that the secretary of state’s office has virtually no power to enforce the open records law. While the law, in many respects, is sweeping, 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.

Supporters of open record laws say the state of Florida offers a model for protecting the public’s right to government documents - a right bolstered by a 1992 amendment to the state constitution approved by 87 percent of Florida voters.

Tom Fiedler, dean of the College of Communication at Boston University and a former executive editor at The Miami Herald, said reporters and citizens in Florida enjoy much broader access to government records than their counterparts 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.’’

Jon Albano, a First Amendment lawyer with Bingham McCutchen who frequently represents the Globe in battles for public records, said the lack of an enforcement mechanism in Massachusetts allows officials to virtually ignore Galvin’s demands.

“They don’t have to comply with his orders, so they treat them like advisory opinions,’’ 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 said enforcement of the law would be enhanced by a streamlined process for hearing public records disputes in the courts.

Indeed, with no power to fine or otherwise discipline uncooperative officials, Galvin must rely on the attorney general’s office, which is often reluctant to take action against state agencies in public records cases, perhaps because the office represents those same agencies in other legal matters.

And if the attorney general declines to act, those stymied in their request for public records must rely on the courts, where the cost of filing a lawsuit may be prohibitive and the time it takes to obtain a decision may render the value of the information moot.

Massachusetts reporters believe that the delays and high fees they encounter when requesting public records are an attempt by some government officials to discourage requests for public records by exploiting the fiscal hard times besetting the news media.

“It’s gotten worse and worse,’’ said Joe Bergantino, director of the New England Center for Investigative Reporting at Boston University, which publishes stories in the Globe. “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.’’

Recently, Bergantino was given an estimate of $6,600 by a large state agency in response to his requests to review the e-mails of several senior officials. The agency justified the price as the cost of 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.

Government officials often justify delays in responding to requests for public documents - and the high fees they sometimes charge - by noting that the documents may be difficult and time-consuming to find and review for information that is exempt, especially at a time when many agencies are cutting their budgets and laying off workers. They also complain that news organizations and individuals make far-reaching requests for large amounts of data without any apparent purpose.

“They should be more specific,’’ Menino said. “Some of them just throw out a wide net.’’

Tom Champion , the spokesman for the City of Somerville, made a similar comment about Rafkind, asserting that the sweeping nature of his request, along with a legal obligation to delete personal information from the records, resulted in charges of 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.’’

The Massachusetts public records law sets out 16 specific exemptions, including personal medical information, information about ongoing criminal investigations, and information being used by government officials to reach policy decisions.

At times, differences of opinion erupt over whether specific records are covered by those exemptions, differences that have led to court decisions broadening some of the exemptions.

In 1989, for example, the Supreme Judicial Court ruled that autopsy reports fall under the medical records exemption, effectively ensuring the privacy rights of the dead. 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. That case was also initiated by the Globe.

Stephanie Ebbert and Sean P. Murphy of the Globe staff contributed to this report.