Government records: continuing barriers to access

Government records are once again a focus of concerns in Massachusetts, notably problems getting access to records enforced. A bill pending in the General Court’s committees might have a chance to pass in the next two weeks. Otherwise, it is likely to remain shelved for another year or more.

Sunlight: In the memorable words of former Justice Brandeis, “Sunlight is…the best of disinfectants.” House 3665, now up for review in Ways and Means, would let more sunlight into some dim corners of state and local governments. However, this bill–from Rep. Kocot of Northampton and Sen. Lewis of Winchester–offers only limited progress toward lifting a chronic, statewide curtain of secrecy.

A few years ago, during Martha Coakley’s terms as state attorney general, her office said public records access was “not a top priority.” The public records supervisor in the secretary of state’s office soon said he was no longer referring violations to the attorney general. According to the Boston Globe, Secretary of State “Galvin’s office leaves it up to citizens to go to court to force agencies to comply with…rulings, something that can cost tens of thousands of dollars in legal fees.”

In parts of the state, access to information became a luxury. Even the winner of a successful lawsuit could not be sure of cost reimbursement. Not all situations proved hostile. For example, during the past year the Brookline town government responded promptly to six public records requests–three to the Office of Town Clerk and three to other agencies–for the benefit of Brookline Beacon readers. Those agencies did not charge fees for copies of their records.

Proposed reforms: As reported out of the joint committee on state administration, H. 3665 recognizes electronic data and in Section 2 tries to regularize formats, a quest probably better left to regulations. Section 3 requires naming “records access officers.” The Massachusetts Municipal Association has tried to paint this as a cost burden, but government agencies are tasked to provide access to records anyway. They would simply have to say who handles requests.

Section 4 tries to improve enforcement. The supervisor of public records “shall” rather than “may” notify the attorney general of violations, and the attorney general “shall” rather than “may” pursue remedies. It would also rein in cost and legal barriers. A “reasonable fee” for a copy of a record must not “exceed the actual cost of reproducing the record…provided that no fee shall be charged unless at least two hours of employee time is needed.” When administrative remedies fail and a lawsuit follows, “the court shall award reasonable attorney’s fees and costs to the party seeking public records if that party has substantially prevailed.”

The proposed reforms leave untouched the worst barriers to public information. In Chapter 4 of the General Laws, Section 7(26) specifically excludes 20 categories of information from “public records.” Those include information about personnel rules and practices (item b), policies under development (item d) and contracts for medical services (item m). None of these exclusions contribute to “transparency” in government.

Origins, secrecy and arrogance: Records requirements began in Massachusetts law with Chapter 161 of the Acts of 1851: An act for the better preservation of municipal and other records. That and later laws required records “open for public inspection.” Public records laws were bound into the General Statutes of 1860 and reached their current organization in the General Laws as published in 1921.

In Chapter 4, Section 7(26) defining “public records” had no exclusions in 1921. Today’s curtain of secrecy is a web of devices largely unknown during the previous seven decades and mostly invented over the following five decades. Few of those have ever received open discussion and withstood scrutiny. In 1921, the sign of a black hand emerged in Section 18 of Chapter 66, “This chapter shall not apply to the records of the general court….” also excluding state assistance and pension information from “public records.”

The arrogance of the Massachusetts legislature in 1920, excluding its own records from public inspection, later extended to ethical and financial disclosures and to open meeting laws, when those began to be developed in the 1950s. It may take an initiative enacted by voters to extract the black hand from the General Court, long a corrupt body unwilling to inform the public because of being unable to reform itself.

– Craig Bolon, Brookline, MA, July 23, 2015

Dan Crowley, Massachusetts public records reform bill nears vote amid intense lobbying, Hampshire (MA) Gazette, July 22, 2015

An act to improve public records, House bill no. 3665 of the 189th Massachusetts General Court, 2015

Todd Wallack, Lobbying picks up on proposed public records law, Boston Globe, July 20, 2015

Allison Manning, Here’s how bad public records laws are in Massachusetts, Boston Globe, May 14, 2015

Editorial Board, With Mass. public records law in tatters, it’s time for reform, Boston Globe, March 13, 2015

Todd Wallack, Secretary of State regularly keeps government records secret, Boston Globe, September 13, 2014

An act for the better preservation of municipal and other records, Chapter 161 of the Acts of 1851

General Laws of Massachusetts, Vol. 1, 1921 (96 MB)

Craig Bolon, Override Study Committee: Open Meeting Law problems, Brookline Beacon, August 7, 2014

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