Extending the reach of the public records law

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Expanding the Public Records Law

In Massachusetts, the governor’s office, state legislature, and judiciary — the three most influential parts of state government — are exempt from the public records law. But there could soon be progress on that front now that Secretary of the Commonwealth William F. Galvin has proposed a bill (SD.2981) that would apply the law to the governor.

“We need to start addressing the egregious situation we have,” Galvin told the Boston Globe. “This is the most powerful office in Massachusetts doing public business and dealing with public policy. The idea that the most powerful position in the state and its records are not subject to public scrutiny is absurd.”

In its 1997 Lambert ruling, the Supreme Judicial Court held that the judicial nominating council, an arm of the governor’s office, was not required to disclose a questionnaire completed by an applicant for judicial appointment. The SJC noted that the governor’s office is “not explicitly included in” the public records law. Governors have since relied on this decision to claim that they are exempt from the law.

Past supervisors of public records, serving under Galvin, accepted this justification. However, Rebecca Murray, the current supervisor, reopened the issue in 2017. After Governor Charlie Baker’s office refused to provide the Boston Globe with a log of constituent calls, Murray referred the Globe’s appeal to the attorney general’s office for enforcement. However, the attorney general’s office, under Maura Healey, sided with the Baker administration.

“[Governors] clearly exaggerated the plain facts of the Lambert case to make a giant loophole for themselves,” Galvin told the Globe. “The Lambert case was about judicial nominees. It wasn’t about the other activities of the governor’s office. They’re refusing to provide basic information.”

Todd Wallack, the deputy managing editor of WBUR, described his experience requesting gubernatorial records during a recent Radio Boston appearance. Wallack is a public records expert and former Boston Globe reporter whose work led to a number of the paper’s successful public records lawsuits.

“[W]hen I filed requests with the courts and the governor’s office, sometimes they provide me information and other times they say, ‘Sorry, we’re not going to, and we’re not covered by the public records law so there’s nothing you can do about it,’” Wallack said. “Part of it depends on whether it’s in their personal interest to get information out. So if there are records that the governor wants people to see, the governor has an interest in doing that. If there are embarrassing records, the agencies are more likely to withhold them.”

Wallack pointed to recent scandals in other states: “[L]ook at all the allegations against the former governor in New York [Andrew Cumo], both with sexual harassment and misusing the office with people working on his book. Those types of records would not be subject to the public records law in Massachusetts because the governor’s office claims to be completely exempt.”

Galvin’s bill was filed on his behalf by Senator Jamie Eldridge, a Democrat from Acton who was involved in shaping the 2016 public records law.

“Secretary Galvin reached out to me because of the fact that I filed other bills on public records law,” Eldridge told me. “His office has drafted [the recent bill].”

He continued: “I think it’s very accurate to say that the state government — whether the executive branch, the legislature, or the judiciary — is not very transparent. … [W]ith respect to the executive branch, … we’re all really in the dark for why, each and every day, critical decisions are made on everything from immigration policy, to civil rights, to equity, to healthcare, and clean energy. And if the public, and obviously the media, had access to email correspondence and letters, I believe we’d have a better understanding for the rationale and motivation for these decisions and therefore [be] better able … to influence public policy.”

While Galvin’s proposal is welcome news, it contains a big caveat: It only applies to future governors. Records from Baker and his predecessors would still be off limits — for example, records that could inform the public about Baker’s handling of the historic COVID-19 pandemic.

According to Eldridge, this exception was based on political considerations.

“Unfortunately, this is the dynamic we have now with a Republican governor,” he said. “[Baker] being opposed [to] or silent on a lot of bills is why the legislature doesn’t advance bills.”

Baker spokesman Terry MacCormack told the Globe that the administration will “carefully review any legislation that reaches the governor’s desk” — not a very enlightening statement of the governor’s intentions. 

But it remains an open question whether exempting Baker and his predecessors is a necessary concession. With enough votes, the legislature could override a veto. Furthermore, most of the candidates for governor have expressed some level of support for expanding the public records law, which could pressure Baker into signing a bill that includes his administration. The legislature could also wait to pass a more comprehensive bill when the next governor takes office.

Two Democrats running for governor have commented on the issue.

Attorney General Maura Healey’s office recently told the State House News Service that Healey supports opening up the governor’s records but did not comment on the legislature or judiciary. “AG Healey has long supported updating the public records law to cover the governor’s office in the interest of transparency and accountability,” said Healey spokeswoman Jillian Fennimore.

Healey was also asked about the subject on GBH’s Boston Public Radio back in 2015. She responded: “I don’t think that any branch should be categorically exempt from public records law. I think that there may be appropriate and indeed needed exemptions that should apply, but we can craft those.”

The group Progressive Mass also asked candidates for governor about opening up the three branches. Senator Sonia Chang-Díaz gave a vague answer: “In principle I support eliminating some of these exemptions. I will, however, want to study this issue further to determine the likely ramifications of such rule changes on each branch and identify any reasonable limits that should be retained to ensure business can be conducted functionally.”

(Harvard professor Danielle Allen was an early proponent of greater transparency, pledging to voluntarily honor records requests regardless of the law. She told Progressive Mass she wants the law to apply to all three branches, calling it “a key step to building trust and strengthening our democracy.” However, Allen dropped out of the Democratic primary last week.)

The two Republican gubernatorial candidates have both said they support subjecting the governor’s office and legislature to the public records law.

Geoff Diehl, a former state representative, released a statement to the State House News Service: “I think there should be openness with regard to access to public records in our state, and that should include the governor’s office and the legislature. I recognize the need for certain limit(s) and exemptions, but the guiding principle should be a preference toward full disclosure. After all, it’s the people’s government!”

And businessman Chris Doughty’s strategist Holly Robichaud told the News Service: “As the next governor, Chris would support transparency and openness and having the public records law applied to the governor’s office and the legislature.”

On a recent episode of the GBH program Greater Boston, all three candidates for attorney general — Democrats Andrea Campbell, Shannon Liss-Riordan, and Quentin Palfrey — also said they support applying the law to the governor’s office. Their support is notable because the attorney general is responsible for enforcing the public records law in court.

Senator Becca Rausch is vice chair of the legislature’s joint committee on state administration and regulatory oversight, which is currently reviewing the Galvin bill. Rausch, a Democrat from Needham, said she supports the bill but that opening up the records of Baker and past governors should not be off the table.

“I think we as a legislative body should [have], and the people deserve, a conversation that is all encompassing, regardless of what the governor may or may not do,” Rausch told me. “And if the governor decided to veto something that included his own office …, then that’s his decision, and he would be well within his right to make it — and then the legislature would decide what to do next.”

(If you want to get involved in this issue, consider looking up your state legislators and contacting them with your thoughts on Galvin’s bill.)

Last year, Rausch filed a bill (S.2107), which Eldridge cosponsored, that would apply the public records law to both the legislature and the governor’s office, including Baker and past governors. Eldridge also filed a separate bill (S.2048) that would only affect the legislature. Earlier this month, both bills were sent to study, effectively killing them.

State lawmakers seem to have little appetite for opening up their own records for public inspection. When they passed a major update to the public records law in 2016, they punted on the issue of the governor, legislature, and judiciary by creating a commission to take up the matter. The commission did not bother to meet until after the Boston Globe started asking questions. Then the legislature gave the commission an 11-month extension on its deadline. Finally, it disbanded in 2019 without issuing a report. “Beacon Hill pols prefer less scrutiny of Beacon Hill pols,” as the CommonWealth headline noted.

“I don’t think there’s yet the support for applying the public records law to the legislature, but I will keep advocating,” Eldridge said. “I certainly think that you’re seeing more of the new members of the legislature that are more open to transparency or just a comfort level with the fact that with technology, a lot of this information can be put online or made available for … not too much of an investment. … [J]ust this year, a number of legislators announced that they’re either not running for reelection or they’re leaving to take other jobs. So it’s an opportunity for people who care deeply about transparency and accountability to run and get elected to office.”

Rausch also plans to continue pressing the issue of the legislature. She points out that the main concerns her colleagues might have are already addressed by the various exemptions to the public records law, such as those for deliberative processes and personal privacy.

“Anyone who holds elected office is in that office because some number of people voted for them,” she said. “The bulk of our [records] are about doing the work of the people … and those [records] are important to make accessible. It also is important to sustain and promote faith and confidence in our government. Which I should add, I think we have really strong state government in Massachusetts, but we are seeing a decline in that trust nationally. And that should be a concern for anyone who values democracy.”

Eldridge also brought up the issue of trust: “[I]n my experience, getting back to all my constituents, including those who disagree with me …, they appreciate that I’m up front about my views. And so I do think that applying the public records law to the executive branch and to the legislature would help restore that faith and actually allow us to get more done.”

“I’m Not Going to Give You Any Breaking News” — Secretary’s Race Light on Specifics

Secretary of the Commonwealth William Galvin is currently up for reelection, seeking an eighth term, and facing a primary challenge from Boston NAACP president Tanisha Sullivan. According to Sullivan, Galvin’s recent proposal on the governor’s office is not ambitious enough.

“[T]hat’s 30 years too late. The reality of the situation is that this has been a long-standing issue,” Sullivan told me. “It is very curious to me that not only has the secretary waited until he had a formidable challenge to even look in the direction of removing these exemptions, but that he intentionally avoided a conversation about the [legislature’s] exemption.”

She added: “When I’m secretary of state, it will not take a political campaign year, an election year — it will not take a crisis — for me to be focused on the public interest.”

Galvin said his bill does not include the legislature because of opposition from lawmakers.

"At this late stage, to try to get the legislature to do something that they’ve failed to do year-in and year-out doesn’t seem a very sensible strategy,” he told New England Public Media. “Whereas I think the opportunity that’s presented with a change in the governor’s office is a reasonable strategy and one worth pursuing.”

On Greater Boston, host Jim Braude asked why Galvin, after nearly three decades in office, was only now getting around to proposing legislation to open up the governor’s records. Galvin responded that he had already done so in 2015 when he proposed a ballot question to update the public records law.

This is not true. Galvin’s proposed question would have made some small improvements, but it would not have applied the law to the governor’s office. Galvin’s question, which he introduced after a period of intense media criticism about his handling of public records, did not appear on the ballot because he failed to gather enough signatures.

When Sullivan first launched her campaign, she also spoke with Braude, who asked her about the governor’s office, legislature, and judiciary. Sullivan gave a noncommittal response: “What I’m willing to say at this moment is that I will lead the charge in helping to ensure that we are having the conversation.”

More recently, she told me the exemptions for the three branches were “a problem,” but she was still vague about how she wants them changed.

“I do believe that when it comes to these exemptions, we need to have a clear understanding about why they exist. And also let’s be honest about whether they need to exist,” she said. “What I support is a full review of the exemptions, and legislation that is focused on increasing transparency, and legislation that is carefully crafted to ensure that we’re not just touching on the governor’s office or the legislative branch or the judiciary, but that we are cutting across all three of them and ensuring that to the extent any exemption remains that it is an exemption that is within the public interest.”

Despite preparing a number of questions, some of which I provided by email before our conversation, I could not get any specifics about policy from Sullivan.

She would not say whether she supported any of the public records bills currently before the legislature or whether she thought Baker and past governors should be subject to the law.

She said police records should be more accessible, but she would not say if there were any specific changes that should be made to the wording of the exemption for law-enforcement investigations.

Sullivan said she does not have an opinion about the performance of Rebecca Murray, the current supervisor of public records who has held the position since December 2016. If elected, Sullivan would decide whether to retain or replace Murray.

“I’m not going to give you breaking news,” Sullivan said. “[W]ith respect to specific policy positions — and so you’re going to get this answer from me on all of them — we have not rolled out our public policy platform, and I am not going to get into the details of public policy today.”

She continued: “And actually, before we roll it out, we will have opportunities for the public to weigh in on our intended policy platform. …  I do not want to get ahead of those conversations with the public.”

Sullivan said she would invite me to a conversation with stakeholders but that “it would be for [my] informational purposes, not for reporting purposes.”

I will not agree to observe or participate in any such conversation with a candidate if it is off the record — especially if the topic is increasing transparency.

It’s disappointing that Sullivan didn’t adopt any clear policies before jumping in the race. The election is a rare opportunity for debate about access to public records — and it won’t result in meaningful change unless the candidates are pressured to take stands on specific issues.

Hopefully we’ll get more substance from both as election day draws closer.

Boston’s Obstinance on Records in the News

Check out the Boston Herald’s Sunday story about the rise in public records appeals against the city of Boston:

Secretary of State William Galvin’s office, which is the place to bring any complaints about the responses — or lack thereof — to public records requests to government agencies, fielded 233 [appeals] last year that had to do with the city of Boston.

Though the city’s public records office remains slow to respond to requests from media and members of the public alike, these issues largely predate Mayor Michelle Wu, who came into power in November. Wu’s press office said the city “seeks to be responsive to all requests, including appeals to the state,” and contends the number of complaints is dwarfed by a massive spike in the number of requests, particularly in the past couple of years.

…

Justin Silverman of the New England First Amendment Coalition said the uptick in requests is no excuse for not responding to them.

“That could be a factor, but if the law was being followed, there wouldn’t be very many appeals in the first place,” said Silverman, who said he’d heard complaints about Boston on this front from various reporters.

It’s worth noting that Boston’s public records department is headed by Shawn Williams, the much-criticized former supervisor of public records. In 2016, Williams and his then boss Bill Galvin were nominated by the group Investigative Reporters & Editors for its tongue-in-cheek Golden Padlock award, which it bestows on the most secretive government officials and agencies. The pair ultimately lost to the US Department of Veterans Affairs.

In my experience, Williams and his staff address many requests by simply ignoring them. If the requester does not continue making appeals, the city after some time will say that there has been “no recent activity” and tell the requester to make a new request, starting the dysfunctional process all over again. In theory, the public records law puts the burden on cities, towns, and state agencies to respond to requests — in practice, requesters have the burden to pester the municipality or agency until it deigns to comply.

The 2016 public records law includes a provision that was supposed to deter this sort of behavior; it prohibits municipalities and agencies from charging fees when they fail to respond to requests within 10 business days. But this doesn’t make much of a difference. Fees generally can’t be assessed for requests that only only take a few hours of work. Fees also matter little when the municipality or agency has no intention of releasing the records in the first place.

The legislature has a lot more work to do if it wants to address this problem, such as empowering the supervisor of public records to issue fines that increase the longer a municipality or agency refuses to comply with the law.

I doubt state legislators will pass a law like that anytime soon — but maybe they’ll do it before they let us see their own records.

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