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Secretary of State Galvin Files Public Records Ballot Question

Secretary of State William Galvin on Monday opened a new front in the push to improve access to public records in Massachusetts, filing an initiative petition that would let voters weigh in next year on what critics have described as one of the weakest public records law in the country.

Galvin, the state's official supervisor of public records, said he would prefer to see the Legislature act on legislation to address what he described as lax enforcement of public records access, but pledged if necessary to put the resources of his political operation behind a ballot drive next year if the bill or gets "watered down."

"I think I've made it pretty clear my preference would be for the Legislature to act, but this is sort of a guarantee because we need to have this issue resolved," Galvin told the News Service on Monday.

The Brighton Democrat turned in the two-page petition to Attorney General Maura Healey's office on Monday, two days before the Wednesday deadline to submit language and an initial 10 signatures for any proposed questions for the 2016 ballot. Galvin's petition had 15 co-signers, including IBEW Local 103 business manager John Dumas, of Quincy.

Similar to legislation being negotiated on Beacon Hill, Galvin is calling for Massachusetts to join 47 states that allow plaintiffs to recoup attorneys' fees if it is determined in court that a public official denying access to records acted in "bad faith." While Galvin said he decided on the "bad faith" standard to avoid creating a "cottage industry" for lawyers who may bring frivolous lawsuits to collect the fees, Common Cause Massachusetts opposes the provision.

Pam Wilmot, executive director of Common Cause Massachusetts, called Galvin's rationale a "red herring" and suggested it could be "hard to prove and unenforceable" for a plaintiff to show bad faith on the part of government official.

"The standard is going to be very difficult to actually make work and may not be effective," Wilmot said.

The petition would also direct the attorney general's office to appoint a single point of contact for the supervisor of public records to refer disputed requests, and would empower the secretary of the state to insist the top prosecutor's office file a motion in court to compel compliance with the law as interpreted by the secretary's office.

"That's new in the sense that it requires action, but it's not meant to denigrate the attorney general's authority," Galvin said.

The ballot initiative would limit the cost of black-and-white copies for requesters to 15 cents per page or 25 cents for color copies, and lays out the amount the State Police, the MBTA and any municipal police or fire department can charge for motor vehicle accident reports, fire insurance reports, and crime incident reports.

Rep. Peter Kocot had hoped to see a vote in the House on a comprehensive public records reform bill before the August recess, but concerns raised by the Massachusetts Municipal Association and others prompted House leaders to delay action until at least early September.

The language of the petition will now be reviewed by attorney general's office, and if it is legally certified, sponsors would have to collect 64,750 signatures by Nov. 28 to clear the second signature hurdle on the way to reaching the ballot.

Asked whether he was prepared to spend political resources and use his organization to gather those signatures, Galvin said, "If I have to." He said now that the petition has been filed he will also begin reaching out to possible allies like the Massachusetts Newspaper Publishers Association for their input and help.

Wilmot, while acknowledging that petitions can be used effectively "as a tool for political pressure," said she remains optimistic that the Legislature will pass a bill that satisfies Galvin's concerns and eliminates the need for a ballot campaign. She said Galvin's petition "falls short" of the legislation's reform to address costs for seekers of public documents and information.

"There's certainly a lot of value of multiple constitutional officers addressing this problem within a week of each other. The governor and secretary of state are saying how much of problem this law is and we need to fix it," Wilmot said.

Gov. Charlie Baker last week announced that absent legislation he was implementing a new pricing structure and standards for processing public records requests across all executive branch agencies.

Geoff Beckwith, executive director of the Massachusetts Municipal Association, said Galvin's petition has the potential to be "helpful to the process" of reaching compromise on reform legislation.

"I think everyone would prefer to have balanced legislation that everyone can support," Beckwith said in an interview.

One of MMA's concerns with the Galvin petition is that it could open the door for individual custodians of public records to be charged penalties and fees in civil disputes over access rather than the agency they represent, exposing people who often times work on a volunteer basis in small cities and towns.

Healey must decide whether proposals filed by Aug. 5 meet constitutional requirements for ballot questions. Sponsors of those questions that clear that hurdle then face a two-step signature-gathering requirement, with 64,750 required in the first round and another 10,792 in the second round. If the Legislature hasn't approved a law that satisfies ballot activists by next July, they can proceed to the ballot if they've met the requirements.

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