Public Law

Updates on Public Law in Massachusetts from Anderson & Kreiger LLP

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Cities and Towns Will Have to Reassess Their Litigation Strategies in Light of the New Public Records Law

With much higher stakes, towns need to reassess their public records litigation strategies.

As Governor Baker noted, complying with the new public records law he signed in early June will require “stretch activity” from Massachusetts cities and towns. The law takes effect in 2017.

There are many steps towns will need to take to comply with the new law. We will address these on the blog in an upcoming post.

However, the new law’s biggest change concerns public records litigation. This post will address the increased caution with which cities and towns should assess litigation over potential records disputes.

In a nutshell, the new law’s provisions on awards of attorneys fees give public records requestors strong incentives to litigate, while making litigation a much higher-risk undertaking for municipalities.

The new law establishes a presumption in favor of an award of attorneys fees when a requestor obtains judicial relief or a municipality surrenders records after a requestor files a complaint.

The municipality can only rebut the presumption by relying on narrow grounds: if it can show that its decision to withhold records  relied on an Appeals Court, Supervisor of Public Records or Attorney General opinion with similar facts, or if the request was harassing or commercial in nature.

As a result of these attorney fee provisions, novel legal issues will present particular dangers for cities and towns. As new technologies create new kinds of “records” that case law has not yet explored, such untried issues may well come up.

Given the litigation risks, towns could be tempted to opt for turning records over, despite complicated privacy issues or other concerns that could harm their students, employees and other residents whose personal information is contained in municipal records.

Cities and towns can best protect their residents by seeking guidance from the Supervisor on novel issues respecting records as early as possible in the records request process. Failing that, municipalities should approach cases presenting truly novel questions with extreme caution. If the battle is worth fighting, be sure to fully prepare and go in with a clear understanding of the risks.

A recent case vindicating a town’s prerogative to protect students’ privacy by executing painstaking (and costly) redactions should provide towns with some comfort that courts may recognize the difficult issues that public records can raise. However, it is important to note the increased risk that town would have faced in litigating the same case under the new law.

Finally, knowing what is at stake should also motivate towns to comply as scrupulously as possible with the law, as our next post will discuss.

Image CreditMaia Weinstock

About the Author

Kevin D. Batt – Senior Counsel

Kevin represents public clients in general municipal, land use, environmental, energy and construction matters.

Please contact him at (617) 621-6514 or by emailing kbatt@andersonkreiger.com.


Posted In: Public Records

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