M E M O R A N D U M

To: MNPA Officers

From: Robert Ambrogi

Re: Public Notices Legislative Efforts

Date: March 5, 2007

I. INTRODUCTION

As I mentioned in an earlier e-mail, the governor has filed legislation, the Municipal Partnership Act, which includes a provision that would allow procurement bids to be advertised on government-run Web sites instead of in newspapers. Section 3 of the bill would amend G.L. c. 30B, the Uniform Procurement Act. Section 5 of the law currently provides that an invitation for bids must:

"be published at least once, not less than two weeks prior to the time specified for the receipt of bids, in a newspaper of general circulation within the area served by the governmental body."

Patrick's bill would revise that to read as follows:

"be published at least once, not less than two weeks prior to the time specified for the receipt of bids, in a newspaper of general circulation within the area served by the governmental body or on a public internet website of either the governmental body or the commonwealth."

The purpose of this memo is to set out both the general arguments for keeping public notices in independent newspapers and the specific arguments against publishing procurement notices on government-operated Web sites. Much of this is derived from information provided by the Public Notice Resource Center in Washington, D.C.

II. GENERAL ARGUMENTS FOR PUBLIC NOTICES IN NEWSPAPERS

A. Public notices must be published by a neutral and independent party.

a. Allowing government officials to post public notices takes away third-party neutral oversight and removes any independent proof of publication.

b. Placing the responsibility of notifying the public in the hands of government officials carries with it a potential for abuse. For example, it may create the temptation to change or manipulate the timing of public notices.

c. Newspapers serve as watchdogs for the community. If a scheduled public notice is not published or contains false information, newspapers are likely to catch the omission or mistake because of their experience in publishing public notices.

B. Public notices must be accessible to the public.

a. Those without computers will not see public notices. Large segments of society lack the means to purchase a computer or to pay for regular Internet access.

b. The government has a fundamental responsibility to ensure adequate notification to the public of its actions. That responsibility cannot be abandoned in favor of presumed cost savings. Furthermore, these savings may prove to be elusive in light of a decrease in effective public notice, and the additional funds that must be allocated to the creation or maintenance of a government Web site.

c. Local newspapers are the established medium for public notices – they are where the public expects to find them.

d. A survey conducted in December 2005 found that only about 23 percent of Americans access the Web for news (most use it for e-mail); more than double that number read a newspaper. (Pew Research Center, 2006)

e. Allowing individual government entities to publish notices on their respective Web sites would create a myriad of different public-notice locations on the Web. Finding them would require computer and Internet skills that many people lack. Newspapers provide readers a single, convenient location in which to find public notices.

f. A significant percentage of Americans do not use the Internet on a regular basis. In 2005, penetration levels hovered at about 68 percent, up only 4 percent in over five years. (Jupiter Research, 2005). Of those that have Internet, only 60 percent of them are online in a given day (Pew Research Center, 2005).

g. Placing public notices on the Internet disenfranchises the elderly. Surveys show that only 29 percent of adults over the age of 65 go online (Pew Research Center, 2006). A recent study by American Demographics found that 78 percent of Americans over the age of 65 get their news from newspapers, while only 12 percent look to the Internet for news. Senior citizens are also among the most politically active citizens and thus are most likely to take advantage of public notices.

h. Placing public notices on the Internet disenfranchises minority citizens. Both African-Americans (56 percent) and Hispanics (52 percent) are below the national average in Internet penetration and are expected to remain well under the national average for many years to come. (Jupiter Research, 2005)

i. Placing public notices on the Internet disenfranchises the poor. Demographic research shows 94 percent of citizens earning of income of $75,000 per year are Internet users. However, only 54 percent of those who make less that $30,000 use the Internet. (Pew Research Center, 2006)

j. Placing public notices on the Internet disenfranchises rural citizens. Internet access in rural areas is consistently 10 percent below the national average, studies show. Furthermore, rural residents are less likely to have access to broadband Internet connections (Pew Research Center, 2006).

k. With notices online, guaranteeing or measuring readership is difficult. Newspapers, on the other hand, are required to demonstrate readership by providing records of paid subscribers, maintaining postal permits or submitting to outside subscription audits. Newspapers are required to maintain certain levels of readership, while Internet sites cannot guarantee even minimal levels of readership.

C. Public Notices must be archived in a secure and accessible format.

a. The Internet does not provide a reliable archival history of public notices. Entire years' worth of notices could be deleted with the touch of a single button.

b. The stability of newspapers as a medium for public notices is unquestionable. The Internet, on the other hand, remains highly vulnerable and unstable. Power surges, computer problems and downed servers can prevent access at any time.

c. Hackers attack not just individual computers and Web sites, but even the routers and switches that handle the backbone of the Internet. A successful hacker attack could leave networks out of commission for days or weeks or could compromise the integrity of public notice data.

d. Computer worms, trojans and viruses are constant threats, including for government computers. Printed public notices provide a record of public notices that cannot be altered.

D. The act of publishing a notice must be verified and authenticated by the publisher.

a. Newspapers serve an important monitoring function. If government entities publish their own notices, it would be much more difficult for the community to monitor compliance and accuracy. Newspapers, on the other hand, rely partly on the publication of notices for revenues, and thus are more apt to make sure local governments are publishing notices in accordance with the law.

b. With Internet publication, interested parties cannot prove whether they were properly notified of an impending action. Newspapers serve as verifiable records of publication; sworn affidavits and hard-copy tearsheets provide undeniable proof of an ad's publication.

II. SPECIFIC ARGUMENTS AGAINST PLACING PROCUREMENT NOTICES ON GOVERNMENT INTERNET SITES.

A. Placing procurement notices online reduces government transparency.

a. The publication of government procurement notices serves two major purposes. First, the notices are published to invite bids from qualified bidders. Second, the notices are published to maintain transparency, and hence public confidence in the government. The public must know how their tax dollars are spent. The fact remains that large segments of society do not have Internet access and thus will not be able to access the procurement notices. If the public is not properly notified of the inner workings of its local government, trust and confidence in the government will be seriously undermined.

B. Small and minority owned businesses will be harmed.

a. Recent studies show that minorities remain well behind whites in use of the Internet. This "digital divide" is constant across all income and educational levels. Placing procurement notices on the Internet will disproportionately excluse minority-owned businesses, which are far less likely to have Internet access than their rivals.

b. Placing procurement notices on the Internet creates a disadvantage for smaller businesses, which are less likely to have Internet access or the resources to regularly search and monitor the Internet than their larger and more technologically endowed counterparts.

C. Placing procurement notices on the Internet may increase contract prices.

a. Local governments, which are spending taxpayer dollars, have an interest in the widest possible dissemination of bid notices. This ensures that the government receives the largest amount of bids on any given project, thereby increasing competition and driving down costs. If the notices are published on the Internet instead of in widely accessible newspapers, fewer bidders will see the notices, and contract prices will increase.

D. Placing procurement information online gives rise to the potential for financially motivated tampering and hacking.

a. The Internet is highly vulnerable to attacks from hackers. Because procurement bids involve financial relations between the public and private sectors, the incentive for hacking and electronic tampering is great. Hackers could easily alter the timing and content of online notices in order to gain a competitive advantage over other bidders. Newspapers offer a stable and virtually unalterable format through with to procure goods and services.

E. The cost of maintaining the notices online will cancel or outweigh any anticipated savings.

a. The costs of creating and maintaining a reliable public notices Web site is expensive. The site must be designed, programmed and implemented in the first place. It then must be regularly staffed, maintained and backed up. Onsite hardware will be required as well as off-site back-up and redundancy. Whatever minor savings municipalities might see by not publishing notices in newspapers would be cancelled out or even swamped by the process of publishing them online.