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Checklist: The Records Access Officer’s Guide to the New Public Records Request Procedures *Updated*

A checklist for public records compliance under the new law.

One of the new public records law’s biggest changes is its requirement that municipalities designate at least one Record Access Officer (RAO).

By the start of 2017, when the new law mostly takes effect, RAOs will need to be up to speed on the new tighter timeframes and increased compliance stakes.

This post should help with the basics of how the entire records production process will work under the new law. It is intended as a rough guide only. Also note that the Supervisor of Public Records will be promulgating further regulations under the law that could change some of this advice.

Please contact Kevin to request a more detailed checklist. His contact information is below. 

 

  1. When the Municipality Receives the Public Records Request

Upon receiving a request, the RAO should:

  • Document the receipt date.
  • Determine and record the response’s due date – 10 business days following the date of receipt.

 

  1. Processing the Request

As an initial matter, the RAO should make sure:

  • that the requested records are within the custody, possession or control of the municipality, and
  • that the requestor has paid for all previous requests.

If not, the municipality does not need to provide the requested records, although it will need to so notify the requestor in a letter.

Under normal circumstances, the RAO has only 10 business days to turn around the request.

Failure to respond within 10 days may forfeit any potential production fees.

Therefore, the RAO’s next priority should be to determine as early as possible:

  1. whether the 10-day timelines is feasible for the request, and
  2. whether the municipality will need to redact or withhold any portion of the records.

To make that determination and to get the process moving smoothly so that the municipality can produce the records in time (if feasible), the RAO should:

  • Consider whether another municipal official is best positioned to serve as lead RAO for this request. Transfer the request to another official if appropriate.
  • Contact the municipal employees or officials who likely have custody over the requested records.
  • Estimate the number of business days the request will likely take. Factors to consider include:
    • Size and Difficulty:
      • The magnitude and volume of requested materials.
      • The difficulty of complying with the request.
      • The records’ likely location – are they all held in one place, or are they likely be scattered in multiple locations or held by multiple people?
      • Whether the requestor has made multiple recent requests.
      • Does the municipality have adequate staff with enough availability to gather the documents within the 10-day timeframe?
    • Email Considerations: What are the search terms and search methodology likely to be – is the requestor looking for a specific set of emails related to one topic/time period, or something more larger and more amorphous? How voluminous are the email records requested?
    • Potential Redactions:
      • Are the records likely to be exempt or to contain attorney-client privileged information?
      • Will the municipality need to make substantial redactions?
      • If so, does it have available staff to complete the job in time?

If the 10-day timeline is not feasible, or records will be withheld or redactions seem warranted, the RAO must:

  • Draft a response letter to the requestor. (Scroll down to Section 4 below for more detail on what the letter should say.)
  • Consider having legal counsel review the letter before sending.

If the records are fully producible within the 10-day timeframe, one final consideration is whether they are available as electronic records.

  • Municipalities should provide records in either
    • the electronic format the requestor asked for, or
    • in a standard, machine searchable electronic format.
  • Exceptions apply only if
    • The requested materials exist only as paper records or
    • The requestor can’t receive or access electronic records.

Finally, the RAO should make sure to assess “reasonable” fees for producing the records, if applicable, as the municipality needs to charge the fee before producing the records. (See next section for more on fees.)

 

  1. Producing the Records – Within the 10-Day Timeframe

For normal requests, the RAO should make sure to:

  • Contact the requestor by the 10th business day after the initial request, letting them know that the records are ready for inspection, retrieval or delivery.
  • Collect the fee, if any, before providing the records.
  • Document:
    • the date that the municipality provided the records
    • the number of hours municipal employees, officials, and any vendors, including counsel, worked to fulfill the request, and
    • the fees charged, if any.

Fees. The new law has changed what municipalities can charge for public records. In general, RAOs may assess “reasonable” fees, but there are many limitations.

Municipalities with populations greater than 20,000 may not charge for the first 2 hours of employee time. Thereafter, they may not charge more than $25/hour, nor for time spent redacting records unless required by law or the Supervisor approves. Towns with 20,000 or less inhabitants may include charges for the first two hours of employee time.

In addition, fees cannot exceed the actual cost of producing the record. For copies and prints, fees cannot exceed 5¢/page. A municipality cannot charge for material that is already freely available to the public.

If a municipality believes the fees should exceed these limits or that they need to charge for redactions and segregations, they must petition the Supervisor. They will likely prevail if they convince the Supervisor that:

  • the request is for a commercial purpose or
  • the higher fee is reasonable, not designed to limit access to the records and necessary to “prudently” produce the records.

The Supervisor has 5 business days to respond.

 

  1. When the Municipality Needs more Time or to Redact/Withhold Content

If the response will take longer than 10 business days, or if the municipality will withhold records or redact information allowed, but not required by law, the RAO must send a letter – by mail or email – that the requestor receives no later than the 10th business day after the request.

In the letter, the RAO should:

  • Confirm that the municipality received the request.
  • Record Possession. Identify any records that are not in the municipality’s possession or custody, and let the requestor know what other agencies might hold those records, if known.
  • Withholding/Redaction. Identify any records or parts of records the municipality intends to withhold, explaining the reasons. If the municipality later determines it will need to withhold additional records, the RAO should supplement this letter accordingly.
  • Additional Time. Explain why the municipality will need additional time to produce the records. The law’s standard is that the request “unduly burdens” the municipality’s other responsibilities. In addition, identify a reasonable timeframe – either within 25 business days of the initial request, or a later date to which the requestor agrees.
  • Modification. If the municipality can’t produce the records more efficiently and affordably, suggest a reasonable modification of the scope of the request.
  • Fees. Provide an itemized, good faith estimate of fees, if any.
  • Requestor’s Right to Appeal. Include a statement letting the requestor know he or she can appeal to the Supervisor or to a court.

Again, the RAO should consider having counsel review this letter.

 

  1. Appealing to the Supervisor of Records for More Time

As an initial matter, the law only allows municipalities an additional 15 business days (25 total) for requests that it reasonably deems cannot be produced within the normal 10-day timeframe.

However, if the municipality will need more than 25 days, it can submit a petition to the Supervisor.

Time. The municipality must make that determination by the 20th business day after receipt.

(Similarly, if the Supervisor determined that the municipality must produce a record it initially withheld, the RAO must determine within 10 days of that decision whether it will need more than 25 business days to produce it.)

Contents. The petition for additional time should include:

  • A time estimate.
  • A redaction estimate.
  • The municipality’s capacity to fulfill the request without an extension – including factors such as normal business hours and staff capacity.
  • The efforts the municipality has already taken to fulfill the request.
  • Whether the municipality believes the request is frivolous, or intended to harass or intimidate.
  • The public interest (or lack there of) in producing the documents quickly.

The RAO should provide the requestor with a copy of the petition.

The RAO should consider having counsel review the petition.

Supervisor’s Answer Time. The Supervisor has five business days to decide the appeal, and order a timeframe for producing the records.

 

Image Credit: bourgeoisbee

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, Public Records Requests

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