Media Forced to Pay State Agency to do its Job

Notwithstanding broad support among members of the public and legislators, a desperately-needed bill to reform the Massachusetts Public Records Act has been on hold in the legislature since late July.  Sponsors of the bill have been working to address objections of the Massachusetts Municipal Association that its new limitations on fees would amount to an “unfunded mandate.”  As that debate continues, an investigative report by the New England Center for Investigative Reporting (NECIR) and the Boston Globe on September 19 highlights just how outrageous—and even dangerous—the public records fee charges under current law can be.

In December 2013, NECIR’s investigative reporter Jenifer McKim submitted a request to the Department of Children and Families (DCF) for documents about all child deaths linked to abuse or neglect during the years 2011, 2012 and 2013.  The records shouldn’t have been hard to compile.  The federal Child Abuse and Prevention Treatment Act (“CAPTA”) requires each state receiving federal child protection funding to disclose information about any cases “of child abuse or neglect which [have] resulted in a child fatality or near fatality.”  42 U.S.C. § 5106a(b)(2)(B)(x).  Massachusetts receives about $500,000 in CAPTA funds every year.

Notwithstanding this federal requirement, DCF told McKim that it would take many hours to compile the information, and that the agency would charge NECIR for the time.  McKim therefore narrowed her request to just one year, 2013, in the hopes of speeding up the process.  DCF then provided its “good-faith” estimate of the cost for that one year period:  $2,023.00, comprising 67 hours of a paralegal’s time at the rate of $30.19 per hour.

McKim appealed this fee estimate to Supervisor of Records Shawn Williams at the Secretary of State’s Office.  She noted that she was only seeking federally-required information, and argued that if DCF’s files “are not kept in a manner that would allow the ready retrieval of such critically important information as which children have died of neglect on DCF’s watch, a requesting entity like NECIR should not be required to foot the bill.”  On April 29, 2014, Williams responded, in essence, “yes, you should.”  He upheld the fee estimate as “reasonable” precisely because DCF hadn’t yet compiled the federal CAPTA information.  “[T]he Department’s report lags about two years behind when [fatality] incidents occurred,” Williams explained, and therefore “the Department would need to review every available case in order to determine which information” might relate to a death from abuse or neglect.  Thus, Williams’ ruling essentially required NECIR, a non-profit investigative newsroom, to pay DCF to assemble the fatalities information that it was required to report anyway, on a subject at the very heart of the agency’s mission.

In August, 2014, NECIR teamed up with the Boston Globe and was able to expand its request for fatalities data to five years, from 2009 through 2013.  To its credit (I suppose), DCF did not increase its fee estimate five-fold—instead it doubled it, to $4,468.  The charge was paid in August 2014, but then it took five months—and perhaps not coincidentally, a change in the administration—for the agency to actually begin producing the records.  DCF unloaded the first three years of fatalities data in January 2015, and the rest in March.

The records, as you might expect, are important.  Among other things, they show that at least 110 children died of abuse and neglect during between 2009 and 2013 in Massachusetts.  Of these, 38 had previously received DCF services, and 26 were under DCF supervision at death. In a number of those cases, DCF had assigned the child to a “low risk” track, a designation advocates say ensures some at-risk children will fall through the cracks.  NECIR also published an online interactive display of each of the lost children, complete with heartbreaking photographs and biographical details.  Much like the recent identification of “Baby Doe” as Bella Bond, NECIR’s report puts names and faces on what would otherwise be cold statistics.

If the public records bill, H. 3665, had been in effect last year, it would have prevented DCF from shifting full cost of compiling this important information onto the media.  The bill provides that “[r]ecords shall be furnished without any charge or at a reduced charge if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of operations or activities of the government and is not primarily in the commercial interest of the requester.”  It would be hard to argue that the disclosure of these records was not “likely to contribute significantly to public understanding of [the] operations” of DCF. Additionally, in July, Gov. Baker issued a modest directive to state agencies to streamline their public records fee practices by providing the first four hours of agency search and retrieval work at no cost and limiting hourly rates to no more than $25.00.  His directive also states that even where entire databases of information are requested, the production delay should not exceed eight weeks.

We are fortunate that NECIR and the Globe had the resources to pay DCF $4,500 for these important records.  But as McKim reports, advocates for children are worried that such high price tags could be prohibitive to watchdog groups in the future, preventing needed reforms and putting more children at risk.  Will the legislature be content to let such important information go unreported unless a private party can pay the government to do its job?  Or will it instead enact the reforms necessary to allow the public to evaluate how its government is performing?  We should all hope for, and work for, the latter.

If you have any questions about the information presented here, or would like to learn more about how Prince Lobel can address any of your media law concerns, please contact Jeffrey Pyle, the author of this post, at 617 456 8143 or jpyle@PrinceLobel.com, or click here to contact any of the attorneys in the firm’s Media Law practice group.