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HomeMy Public PortalAboutdec16publicrecords ..,�,. s .�,._s�,;•;�`,&Y„ :'k= a` 'lc.,-, � r - ems. rir w '7: ' "'fit Ow a 1 The New Public Records Law - Municipalities On June 3, 2016, the Legislature enacted, "An Act to Improve Public Records", Chapter 121 of the Acts of 2016 fhttns://malegislature.Lyov/Laws/SessionLaws/Acts/2016/Cha-oterl21). Chapter 121 makes significant changes to the Public Records Law, and as a result, public entities throughout the state will need to adjust their public records practices. While the new requirements will not take effect until Tanuary 1. 2017- it is important to understand how the pending changes are expected to impact governmental operations. The state Supervisor of Records (`Supervisor") has promulgated draft regulations to implement the new law, as required. Once the regulations are finalized, further or different guidance may be necessary. Please note that the below summary applies only to municipalities, as other governmental entities have different obligations under the law in several respects, (I)Appointment and Duties of Records Access Officer ("RAO") • The "default" RAO is the municipal clerk, or the clerk's designee, unless the "chief executive officer" appoints a different,or additional, RAOs, • The RAO must assist public records requesters, assist records custodians in maintaining records, and prepare guidelines explaining the public records request and response . process (the guidelines are required by Tuly 1. 2017). • Contact information for each RAO, and the guidelines noted above, must be posted to the official municipal website and in government offices. (2)Responses to Requests • The time to provide an initial response will increase from 10 calendar days to 10 business days. • The new law expressly authorizes requests by hand, first class mail and e-mail; the law does not expressly address in person verbal requests (although the draft regulations do). • If a complete response cannot be provided within the initial time frame, the RAO must respond in writing to confirm receipt, explain why a complete response cannot be provided, direct the requester to a different custodian (as appropriate), outline what will be withheld if known,and estimate the time and cost for the response. • For municipalities, the outside date to provide the requested records shall not exceed 25 business days from the date of the initial request, although the requester can agree to more time. THE LEADER IN PUBLIC SECTOR LAW 617.556.0007 1 1.800.548.3522 1 www.k-plaw.com I ©2016 KP Law, P.C. IM SRI NMI, no • The RAO may ask the Supervisor to grant 30 additional business days for "good cause shown". "Good cause shown" will be evaluated based upon a variety of factors including: time needed to search for and redact the record(s); office hours; capacity of the office; number of requests; and whether the request is part of a series that are frivolous, intended to intimidate or harass. • The law establishes a preference for electronic copies, unless the requester specifically dictates otherwise, and, to the extent feasible, various categories of common documents (like meeting minutes) must be posted on the municipal website. (3)Fees • A reasonable fee may be assessed for production of records other than those "freely available for public inspection" (such as on a website) ONLY if the RAO responds to the request within 10 business days. • The fee for copies of records shall not exceed the actual cost for reproducing the record, and shall, unless otherwise provided, be calculated as follows: the actual cost of storage device; for black and white photocopies or computer printouts, no more than $.05/naoe. whether single or double-sided. Note: This reduced per page fee is already in effect After the effective date of the law, the fee will also apply to police records. • For responses requiring two hours or less, no fee may be assessed for"employee time". • For responses requiring more than two hours, the prorated hourly fee capped at $25.00/hour of the lowest paid person capable of doing the work, or for outside legal counsel, technology and payroll consultants, or others needed to prepare a response , can be charged for the time required to look for, compile, redact where required by law, segregate, or reproduce the records; provided that, in a municipality with a population of more than 20,000 people, no charge may be made for the first two hours of work. • It is unclear to what extent a requestor may be charged for segregation and redaction time f when a discretionary exemption is asserted to withhold records. • The RAO may petition the Supervisor for permission to charge a higher hourly rate or for segregation and redaction time. The RAO may deny additional requests from requesters that have failed to pay for previous requests, provided that the requester is provided with an accounting of outstanding balances. • As is the case now, the RAO may not require the requester to specify the purposes for the request;however under the new law, a request for additional information may be made to determine whether the request is made for a commercial purpose (sale or resale of a portion of the record or use of the information to advance strategic business interests, and not for news purposes or to better understand government operations) or to grant a fee waiver. i THE LEADER IN PUSLIC SECTOR LAW 617.556.0007 1 1.600.548.3522 1 wwwA-plaw.com 1 ©2016 KIP Law, P.C. {.,+„�•//�inxnxr CPr. ctaYP. 1l"la.l1R/DI'C'/UrCnOL1GG.11�111 ULMN L (4)Appeals • Requester to Supervisor or Superior Court - Appeals may be made to the Supervisor who shall issue a written decision within 10 business days of receipt of appeal; a requester aggrieved by a decision of the Supervisor may obtain judicial review in Superior Court OR the requester can go directly to court. • Attorney General - The Attorney General, at the request of the Supervisor, may seek to compel disclosure of records; the Attorney General may also act on its own initiative or intervene in case filed by a requester. • All records are presumed to be nublic. and burden is on municiDalitv to show, by a oreDonderance of the evidence. that the record or nortion thereof may be withheld. (5)Attorneys' Fees, Punitive Damages • The new law establishes a presumption in favor of an award of costs and attorneys' fees to a person who successfully pursues his request in court, and obtains relief either "through a judicial order, consent decree, or the [voluntary] provision of the requested documents after the filing of a complaint." There are limited circumstances in which a municipality may argue against an award of attorneys' fees and costs. • Waiver of Fees - If attorneys' fees and costs are awarded, the Superior Court shall order the municipality to waive fees assessed for copies of the records; if no such award is made, the court may still require the municipality to waive such fees. • Punitive Damages - The Superior Court may award punitive damages of no less than $1,000 and no more than $5,000 if the requester has obtained judgment in Superior Court and has demonstrated that the municipality failed to act in good faith. . Summary. This eUpdate identifies certain significant changes to the Public Records Law for your immediate information. It will be important to plan for these changes in the law, including appointment of RAOs, preparation of guidelines, and training of staff responsible for responding to public records requests. The members of our Government Information and Access Group, Attorneys Lauren F. Goldberg (1goIdberaPk-Dlaw.com1, Brian W. Riley fBriIev(a)k-r)Iaw.com), Gregg C. Corbo (gcorboO)k- plaw.com) and Michele E. Randazzo fmrandazzo(@k-Dlaw.com), are available to assist with any questions on the changes to the Public Records Law. They can be reached at 617.556.0007. Disclaimer:This information is provided as a service by KP Law,P.C.This information is general in nature and does not,and is not intended to, constitute legal advice. Neither the provision nor receipt of this information creates an attorney-client relationship with KP Law, P.C. You are advised not to take,or to refrain from taking, any action based on this information without consulting legal counsel about the specific issue(s). THE LEADER IN PUBLIC SECTOR LAW 617.556.0007 1 1.800.548,3522 1 www.k-plaw.com 1 (9 2016 KP Law, P.C.