You might think a state like Massachusetts could take a victory lap during Sunshine Week—an annual, national celebration of open government and public access to information, which this year runs March 15–21. After all, the Bay State helped invent the very idea of open government. Feisty Massachusetts colonists and their broadsheets about tyrannical acts of the British Crown helped spark the American independence movement and forged the early notion that an informed citizenry would form an essential element of the new democracy.
But somehow over the last 250 years or so, Massachusetts lost its way. Today, Sunshine Week shines an embarrassing light on the Commonwealth’s broken public records law.
Massachusetts actually now ranks among the worst in the nation when it comes to government transparency. The Center for Public Integrity gave Massachusetts an “F” in its most recent 50-state survey of public access to information.
Unfortunately, this should come as no surprise. Massachusetts lawmakers have not updated our public records law for more than 40 years.
Lack of access to government information, and the undemocratic atmosphere it creates, plays across all areas of government and deeply affects our communities. Examples from recent headlines include the secrecy around large-impact projects such as Boston’s 2024 Olympic bid, the City of Boston ending the quarterly reporting of public employee pay rates, and the State Police refusing to share information about officers suspected of drunken driving.
Ironically, this lack of government transparency is a rare aspect of our government operations that’s not a secret at all. Massachusetts government agencies have developed a shameless culture of denying access to public information, and they face few consequences for doing so.
We have to stop this slide into secrecy. Fortunately, Northampton state Rep. Peter Kocot and Winchester state Sen. Jason Lewis have introduced solid new legislation that contains these essential building blocks.
First, and foremost, Massachusetts should join the overwhelming majority of states (46 of them, plus the federal government) that have evened the scales of justice by giving courts the power to award attorney fees when public agencies withhold public information from—horrors!—the public. The prospect of agencies having to pay cash money for their obstruction is a proven incentive to obey the law in the first place.
Second, there’s no reason ordinary people should have to pay excessive fees for freedom of information requests, including outdated per-page fees for printing and copying, now that public agencies can provide information in electronic form. We should also do away with the cynical practice of deploying lawyers to censor information that may embarrass an agency, then charging megabucks for their time.
Finally, streamlining the public records system would save both time and money. Each state agency should assign a point person to respond to public records requests and keep a general index of the kinds of records the agency holds. This would enable people to make more tailored requests, and the point person would have the requisite know-how and experience to respond quickly and efficiently.
These simple improvements to modernize our state freedom of information law would save money and help to restore public trust in government.
Halfway through March, we can count on longer, warmer days ahead to pull us out of our winter gloom—but when it comes to shedding light on government, we have to work for it. Please ask Massachusetts state lawmakers to fix our broken public records law today. We need sunshine on what our government does, year-round.
hideous practice, where police are allowed to withhold criminal data about themselves and their special friends, while releasing criminal info (mugshots, arrest info, etc) on John Q. Public for the entertainment and edification of readers of the daily blotter report.
…requiring the preservation and release of every last email, text, etc. sent or received by a public official and applying THAT stupid (IMO) provision to the legislature. Public information should be about the results, decisions, policies, etc, not voyeuristic eavesdropping on every conversation that happens to have been put in writing when it easily could have been done by telephone or in person.
with the public records law would be a TERRIBLE act. It would force any legislator or staffer who writes a legislative proposal, budget amendment or strategy memo or receives one from an outside party to divulge the entirety of the memo. It would give every lobbyist the authority to see every proposal made in private. For example, as an advocate I have drafted amendments and talking points on budget and legislative proposals. If I shopped them around to a few legislators each would be required to disclose them as public records if asked. You could count on almost daily blanket records disclosure requests to every legislator and staff person who carries any weight.
Similarly, proposals to extend the Open Meeting Law to the lege would be disastrous. One part of the OML prohibits a majority of members from talking to each other in a coordianted strategy if done outside the confines of a “posted” public meeting. I think back to the effort to protect the Goodrich decision on same-sex marriages. All of the vote counting by legislators would have been illegal if the OML applied to legislators. We advocates needed a 75% majority to defeat the constitutional amendment to roll back same-sex marriage but we would not have been able to ask legislators to poll their own colleagues about where they stood if the OML applied to them. The only parties that could do the vote counting would be outside groups, and legislators are notorious for not telling the truth to advocates.
In other words it would be fine for members of the B2024 Olympic committee and their deep-pocketed backers to meet with every member of the lege to ask them to support spending taxpayer dollars on the bid but it would be illegal for a group of legislators to call or meet even a simple majority of their colleagues on the same subject. Now think of that power imbalance extending to virtually every policy matter of importance. Progressive would get crushed at every step along the way.
We need a lot more transparency in government and Galvin is starting on the right path. I was glad to see that he said it was worth considering police corruption as part of his transparency push but some of the knee-jerk proposals I have seen on BMG over the past few months are just NUTS. Keep the public records law and the OML away from the legislature.
You make excellent points that I had not considered. Thank you!
Perhaps there is a way to make this material “protected”, so that it is preserved and archived, and also ensure that it remains private for some period (10/25/50 years?). It seems as though similar measures exist at the national level.
What you describe sounds similar to an attorney’s “work product”, and entitled to some measure of privacy. At the same time, the public’s right-to-know tends to be a competing interesting. I seem to remember that, again at the national level, the “legislative history” of legislation is used by bodies like the Supreme Court to help illuminate the intent of the framers of that legislation. The material you describe plays much the same role and in my view can be invaluable beyond its salacious scandal potential.
While I hear your concern about hamstringing the ability to protect things like the Goodrich decision, at the same time I’m pretty sure that the casino industry and its deep-pocketed backers DID meet with every member of the lege, and DID throw a LOT of money and promises their way. I think the voters desperately need a way to get the facts about such meetings.
It sounds as though new legislation is needed that reflects the concerns you raise while preserving the principle that the public does have a right to know about much of this material.
Massachusetts is one of just seven states in the country whose legislature is not subject to public records laws. Having an open and accountable legislature hasn’t been “terrible” at all for the other forty-three.
I do recognize that it might make your job as an advocate a bit tougher, and may even hinder the advance of important liberal causes in some instances. However, even though my values are progressive, I believe even more strongly in government transparency, accountability, and fairness. I also think making the legislature’s records subject to public records laws would go a long way towards reducing the logrolling, petty corruption, and legislative fiefdoms that are endemic in our legislature.
I’ll admit you may have a point about open meeting laws, but I would maintain that it is always better to err on the side of transparency than to err in the other direction.
Documents produced, decisions arrived at, roll call vote, etc. But I see NO purpose to virtual eavesdropping on every little email.
Each email is a document.
A “little” email that says something like “RE: SR2999 — no fucking way, McClaren would destroy us” strikes me as just the kind of thing the public should know if, for example, “McClaren” (made up name) is one of those “unregistered lobbyists” who happens to control a significant flow of campaign contributions.
…it’s not worth fussing over. I’m more interested in the resulting action, how much said lobbyist contributed, what legislation was passed, for example. Reading somebody’s profanity laden rant is just voyeuristic without any intrinsic legal or historical value.
The very fact that an official could have used a phone and chose to instead use email is itself important.
There is a trove of “profanity laden rant” material in the Nixon archives, and it provides ENORMOUS insight into what was actually happening in that horrific period. It has immense legal and historical value, and should have been used in criminal prosecutions.
Written records like this have all sorts of import, good and bad. Their very existence provides leverage to one or both parties, particularly if they end up accessible to one and not the other — or accessible to both and not the public.
Removing this kind of material and relying only on “the resulting action, how much said lobbyist contributed, what legislation passed” and so on is, in my view akin to attempting to understand the meaning of biblical passages or other sacred writings while ignoring or suppressing the context, society, and authors/redactors of those documents.
I guess we may simply have profoundly different world views about the relationship between government and society.
…and some would have more historical and contextual value than others. I guess my standard would simply be if it could have just as easily been spoken rather than written there should be no legal requirement to preserve it because there just as easily could have been nothing to preserve anyway. The historian in me is fascinated by the Nixon tapes, as well as understanding the context of Biblical writings, but still find no reason to preserve your fake example as a one off blowing off steam. What your standard would say to me if I were a public official is don’t write it down if you can help it because someone might get nosy in the name of transperancy. Consistency woul require bugging offices and tapping official phones and I for one would not want to work in that type of environment, and no, I do not believe that is a reasonable trade off for being a public official.
steadily widened until the original law is completely undermined. Except here at BMG there seems to a tendency to undermine the law in advance.
Oh please, the poor legislators! Oh noes, what are we going to do with all those emails!
Public officials hate FOIA’s and hate Open Meeting laws. The don’t need any help from wusses at BMG to find ways to weaken or evade them.