Government Transparency Upon Request: Using the Massachusetts Public Records Law

The investigation into Title IX violations within the Amherst-Pelham Regional Public School system (ARPS) revealed ugly truths about the behavior of some school staff toward transgender and non-binary students as well as school officials’ failure to address complaints. 

If not for an information request and subsequent appeal under the state’s Public Records Law by Scott Merzbach of the Daily Hampshire Gazette, the Title IX reports commissioned by the school district would not have been made public. The feeling expressed by the ARPS Interim Superintendent at the September 19, 2023, joint meeting of the Regional, Pelham, and Union 26 School Committees was that the School Committees and the public “will have to trust” that school officials with access to the reports “are taking appropriate actions.”

The Gazette published an article on November 17, 2023, that summarized highlights of the reports and links to the redacted reports. I read portions of three of the five reports, and the behavior described is shocking.

The Public’s Right to Know

In the determination letter that forced the ARPS School District to release the reports requested by Mr. Merzbach, Supervisor of Records Manza Arthur observes that the Public Records Law presumes that “all governmental records are public records” unless covered by a statutory exemption. In this case, the District cited Exemption (c) [MGL c.4, §7(26)(c)], which pertains to personal privacy, as the reason for non-disclosure.

Ms. Arthur noted that issues of privacy must be weighed against the public interest in “knowing whether public servants are carrying out their duties in a law-abiding and efficient manner”. She decided that in this case, the District had not proven that the records contained the level of personal details that would prevent disclosure, and ordered the release of the reports.

The Strengths and Shortcomings of the MA Public Records Law

The Massachusetts Public Records Law is an important and useful tool to enforce state and local government transparency, yet it is not widely understood. This Guide is an excellent source of information on the Law, and the Secretary of State’s website provides links to helpful features such as the Public Records Request/Appeals Database.

The law has been criticized as having no mechanism for enforcement through the Public Records Division. If a public entity refuses or ignores an order to comply with a citizen's request, only the courts or the Attorney General might provide relief. Court costs will be reimbursed only if the aggrieved citizen wins their court case, and the chances of the Attorney General reviewing such cases are low. The long list of exemptions from the law can also limit the public’s access. 

This differs considerably from the Open Meeting Law, administered through the Attorney General’s Open Government Division. Enforcement actions include fines of up to $1,000 for intentional offenses, compulsory training for offenders, and nullification of actions taken during meetings  [G.L. c. 30A, §23(c)].

As the ARPS example shows, a public entity that describes itself as open and transparent will likely respond to a disclosure order. For any entity,  the publicizing of such a refusal would be a public relations nightmare. The communication options open to aggrieved citizens who meet with such defiance are many and would cause considerable embarrassment for the public agent foolish enough to flout the law.

Though the list of exemptions to the Public Records Law can be daunting, the ARPS Title IX case shows that a public entity’s claim to a statutory exemption does not always hold up under the scrutiny of the appeal process. Requesters who have good reason to believe their claim to access is valid should be persistent. 

The appeals process can also be used successfully when a records request is ignored or when the Public Records Division closes the case with no information having been dispersed to the requester. 

In my own experience,  an appeal usually results in a quick response to the original request. If the records released are unsatisfactory, the requester can appeal again within 90 days.

Often, any email response to a requester of public records will trigger a closure of the case by the state–even if no information was released. This is a quirk in the system that confused me at first. After discussing the issue with an attorney at the Public Records Division, I was advised to open an appeal. Sometimes it takes multiple appeals to secure the desired information, so persistence is key. 

Making Government Accountable

The Public Records Law of today is more streamlined for requesters thanks to reforms signed into law in 2016, which took effect on January 1, 2017. The reforms included:

1. Requiring public entities to create one or more Records Access Officers (RAO) to reduce confusion regarding with whom to file a request;

2. Timelines for public entities to fulfill requests;

3. Limits on fees public entities can charge requesters for producing paper records;

4. Making electronic records, when available, the preferred format for fulfilling records requests;

5. For citizens who take their cases to court and win, the ability of the court to assess punitive damages and attorney’s fees.

RAOs help the state keep track of public records requests through a log noting the details of each request. The creation of an RAO position does not mean that other employees in possession of public records cannot also release them to the public–though it would be good form to relay this release of information to the RAO so that the request may be added to the logbook. Once the requester obtains the public record, they are free to share it in any way they wish.

Despite its limitations, the Public Records Law supports open government and the public’s right to stay apprised of how their elected and appointed officials are carrying out their public duties. We all should be familiar with the law, and use it to its full potential.