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“In the Dark Ages”: Massachusetts exceptionalism includes secrecy in state government
In Massachusetts, elected officials make policy under a veil of darkness unlike anything in the rest of the country
Massachusetts is exceptional in a lot of ways — including its penchant for secrecy in state government. It’s one of just two states, along with Michigan, where the governor claims to be completely exempt from public records law, and it’s the only state where the governor, Legislature, and courts all claim to be completely exempt, according to the Boston Globe.
Even some of the most basic information about lawmaking is kept secret. Before state legislators can vote on a bill, it must go through a committee process — but there is no law requiring legislators to make their committee votes public. There’s also no law requiring the Legislature to share copies of the written testimony submitted by the public-policy and special-interest groups lobbying legislators.
“It’s absolutely remarkable,” said Mary Connaughton, chief operating officer of the Pioneer Institute, a conservative policy group. “We think we’re so advanced in so many ways, but we’re so in the Dark Ages when it comes to government transparency.”
The Beacon Hill blackout makes it difficult for journalists to inform the public about how and why the most powerful figures in state government make decisions about vital issues. Policies about everything — from education, to police, public transportation, housing, healthcare, the environment, the pandemic, and more — are made under a veil of darkness unlike anything in the rest of the country. Advocates and a handful of lawmakers are trying to change the status quo, but recent history suggests they have little chance of success in the immediate future.
“It’s very disappointing,” state Senator Jamie Eldridge said of the commonwealth’s outlier status on transparency. “I think it leads to bad policy outcomes.”
According to Eldridge, the lack of transparency prevents lawmakers from passing progressive legislation supported by voters. The Acton Democrat said that greater access to records — including Massachusetts Governor Maura Healey and her staff’s communications — would help the public have more of an impact.
Eldridge is one of three legislators this year to file a bill addressing the lack of access to public records at the highest levels of state government.
Massachusetts Secretary of the Commonwealth William F. Galvin drafted a bill that would apply the public records law to the governor. Senator Michael Brady filed the bill on Galvin’s behalf.
Senator Becca Rausch filed another bill that would apply the public records law to both the governor and Legislature.
And Eldridge, who is cosponsoring Rausch’s bill, also filed his own bill that would apply the public records law to the governor while taking a middle ground on the Legislature. It would enact simple reforms like requiring the body to publish committee votes online and provide copies of written testimony on request.
Last session, a version of Rausch’s bill and another Eldridge bill that would have applied the law to the Legislature were both killed when the Joint Committee on State Administration and Regulatory Oversight sent them to study — a practice that committees commonly use to kill bills they don’t support. A version of the Galvin bill died in the same committee with no action taken.
Even if one of the pending bills was to make it out of committee, it would go nowhere without support from the leaders of the Legislature and the governor.
“Senate President Karen Spilka is a consistent supporter of transparency and accountability in government, including by making committee votes and written testimony available to the public,” said Spilka communications director Sarah Blodgett.
However, Blodgett declined to say whether Spilka supports making the governor and Legislature subject to the public records law.
“The Senate will review any proposals that come before the body,” Blodgett said. “The Senate president looks forward to these proposals going through a transparent legislative process and will confer with her members on this and other issues that come before the Senate this session.”
House Speaker Ronald Mariano did not respond to requests for comment.
Healey, who would need to sign any proposed legislation unless the Legislature secures a veto-proof majority, has shown no interest in advocating for any of the bills despite her promises of more transparency. While campaigning for governor in 2022, she said she supported applying the public records law to the governor’s office. But Healey press secretary Karissa Hand recently declined to say whether the governor still supports doing so.
The challenge of convincing lawmakers to support increased transparency has led different advocates to take different approaches.
In 2022, when Galvin first drafted a bill that would make the governor’s office subject to the public records law, he told New England Public Media that he did not think lawmakers were willing to apply the law to themselves and that asking them to do so did not “seem a very sensible strategy.” He reiterated that conclusion during a GBH interview in February.
“What [legislators] will tell you is that it’s because they want to protect the candor of discussion [and] debate on legislation,” he said. “Why would their contracts or employment practices or something like that be exempt? What does that have to do with negotiation?”
Rausch’s bill attempts to address concerns about policy-making discussions by proposing a new exemption to the law. The exemption would apply to “communications, memoranda, drafts or other documents relating to developing policy positions of members of the [Legislature] or the governor.”
The law already includes a policy-making exemption, but it is much more limited in scope. The existing exemption says that it only applies to “memoranda or letters” and does not apply to “reasonably completed factual studies or reports.” It also only applies while policy-making discussions are ongoing whereas the proposed exemption would apply indefinitely.
Since the main job of the Legislature and governor’s office is to make policy, the proposed exemption would apply to many of the commonwealth’s most newsworthy records.
“At first glance, it does look very broad,” said Justin Silverman, director of the New England First Amendment Coalition. “I think we should be really hesitant to start carving out new exemptions when we already have many exemptions in play, some of which are regularly abused.”
Eldridge’s bill would only apply to records that were created after Healey took office. Galvin’s bill would only apply to records created after Healey’s current term ends, although Galvin communications director Debra O’Malley said this was a “drafting error” and that Galvin’s office “will seek to remedy it as the bill moves its way through the legislative process.”
However, Rausch’s bill would apply retroactively, opening up the records of past governors and older legislative records.
Eldridge said that his proposal was more “politically palatable” because some lawmakers would see making the change retroactive as unfair.
“I do think that it is important for all elected officials to be on notice that communication is subject to the public records law. Certainly when a select board member or school committee member or someone in a state agency begins their service or their work, they know,” he said. “And previous administrations knew that it was not subject to the public records law.”
However, Eldridge said that he was open to changing his mind.
“I think it’s unfair to the public to maintain secrecy within the governor’s office,” Silverman said. “Governors take office knowing that they are serving the public and that laws they are operating under are subject to change.”
“It almost implies that if people thought that they were subject to public records law, they might have said things differently,” said Jonathan Cohn, policy director of the advocacy group Progressive Mass. “And I don’t think that that’s a good argument.”
Galvin and Rausch declined interview requests. Brady did not respond to interview requests.
Killing Bills in Secret
For years, advocates have been pushing the Legislature to make committee votes and written testimony available to the public. Erin Leahy, executive director of the left-wing group Act On Mass, said that access to this information is crucial for understanding how the Legislature makes policy.
“We get around six to seven thousand bills that are filed at the beginning of each session. And almost all of those — all but maybe a few select hundred or two — end up dying in the committee, almost always by being quote-unquote sent to study,” Leahy said. “And a lot of these are bills that are really, really popular, kind of no brainer. A lot of them would have pretty major material impacts on people’s lives.”
There are Senate-only committees, which do publish votes and share written testimony under rules adopted by the Senate. However, the House has consistently rejected adopting these reforms as part of its rules for House-only committees. In February, Representative Erika Uyterhoeven’s rules amendment to require publishing House committee votes was rejected without debate, according to the State House News Service. The House used a voice vote, meaning the votes for and against the amendment were not recorded.
Instead of publishing all committee votes, the House has adopted a rule of only publishing the names of legislators who vote against a bill and the total number of legislators who vote in favor of a bill or do not vote.
Cohn said that a representative privately told him that “one of the motivating reasons behind [the House rule] … is that so many [legislators] don’t even vote, and they don’t want to call people out for not voting.”
The Legislature also has joint committees that are composed of both senators and representatives. The Legislature’s joint rules do not require publishing joint committee votes or sharing written testimony even though, according to Leahy, these committees do some of the Legislature’s most critical work.
“Most of the bills start their journey through the Legislature in a joint committee. Those are really the substantive committees,” she said. “The Committee on Education, Committee on Transportation, Elder Affairs. All of those are joint committees.”
In February, the Senate passed a joint rules package requiring committees to publish votes and share testimony, and the House passed its own package with no rules about committee votes or testimony. The proposals are being reviewed by a six-member conference committee appointed by Democratic and Republican legislative leaders.
In 2021, the Senate proposed using its transparency rules for joint committees, and the House proposed using its weaker rule of only naming legislators who vote against a bill. The conference committee that reviewed the proposals voted to keep the public out of its meetings and failed to reach an agreement, according to the State House News Service.
Leahy said that access to written testimony is useful because it can show if legislators are being influenced by special interests.
“Maybe if we saw that they received a lot of testimony or materials from the utility lobby, perhaps that might have something to do with their eventual stance against a pro-climate action bill,” she said. “On the other hand, if we see that they’re getting almost exclusively testimony in support of a certain bill action from their constituents and then they take the opposite of that bill action, the constituents would want to know that as well.”
Cohn said making written testimony public also allows organizations like Progressive Mass to understand what other groups are saying and fine tune their own arguments in response.
Cohn said he has heard lawmakers say they are concerned about releasing testimony that contains sensitive information, but he called those concerns “incredibly disingenuous.” He pointed out that the Senate’s rules and the proposals put forth — including Eldridge’s — would allow sensitive information to be redacted.
“If somebody, for instance, was talking about a deeply personal story about getting an abortion and they don’t want their name posted on the site, that is totally fine,” he said. “That’s not the interesting testimony that you’re seeking to find. If you’re looking at testimony, you want organizational testimony more than anything else.”
Leahy said that while making committee votes and written testimony public would be an improvement, the Legislature should be required to release even more information.
“I would be very interested in seeing records that reflect legislators’ day-to-day activities,” she said. “Who they’re meeting with, what correspondence they’re having with the folks that they’re meeting with, what fellow lawmakers they’re talking to.”
Relying on Promises
Massachusetts governors have long claimed a complete exemption from the public records law under Lambert, a 1997 Supreme Judicial Court decision that says the governor “is not explicitly included in” the statute. Healey, after taking office in January, quickly joined the tradition of invoking Lambert to keep information from the public.
In December, just two weeks before her inauguration, she said on the GBH program Boston Public Radio that she would not claim this immunity. But she later issued a policy that says the governor’s records “are not subject to the Massachusetts public records law” under Lambert.
“It is very clear that it’s not going to be a priority for the governor to apply public records law to herself,” Cohn said.
Healey has said her administration will voluntarily comply with the public records law, but her policy says her office will consider the governor’s “unique obligations” when deciding whether to reject requests instead of relying only on the exemptions specified in the statute.
“If you could pick and choose what you want to be transparent on, that defeats the purpose,” Connaughton said. “[The governor’s office] should be transparent on all matters.”
The Healey administration has cited the Lambert decision to deny a Mass Dump request for Charlie Baker administration emails and text messages about police, a Boston Globe request for call logs and emails with the leaders of the Legislature, and a WBUR request for information about sexual harassment complaints, among others.
Journalists have appealed six denials from the Healey administration. The state’s public records watchdog, Galvin appointee Supervisor of Public Records Manza Arthur, rejected all six appeals because of the governor’s reliance on Lambert.
Despite breaking her promise from December, Healey still took credit for keeping it during a March appearance on Boston Public Radio.
“I’m going to look to be the most transparent governor that the state has ever seen when it comes to documents,” Healey said. “It’s also true that I stand by what I said and [sic] that I was not going to take a position that Lambert applies to everything, and I’m really trying to be consistent about that.”
In January, Boston Public Radio cohost Jim Braude asked Healey whether she intended to file her own public records legislation.
“I don’t think I need to file legislation,” Healey responded. “I think that I can just implement along the lines that I’ve articulated. And that’s what I’m going to do.”
Silverman called Healey’s approach to public records a “mess,” saying the governor “would have been better served actually outlining a very specific policy from the beginning as to how she would be handling public records.”
“Governor Healey had this great opportunity to enter office and do what no governor before her had done,” Silverman said. “It’s an opportunity that’s really wasted. … That being said, all of this just goes to show the great need that we have to pass legislation that would subject her office to the public records law so we’re not relying on the promises of any governor, present or future, to be more transparent.”
Right is Right
While it’s doubtful that the state will enact any of the transparency bills this session, the fact remains that transparency is popular with the public. It might not be a kitchen-table issue like inflation or the cost of housing, but it’s an easy-to-understand issue.
In 2020 and 2022, Act On Mass got a non-binding question on the ballot in 36 districts. The question asked voters if they wanted to instruct their representatives to update the House rules to make committee votes public. The bill passed in all 36 districts, with an average of 86 percent support. In Mariano’s district, 78 percent of voters supported telling the House speaker to reform the rules.
“We had to collect thousands of signatures in all of these districts to put this question on the ballot,” Leahy said. “We all stood outside grocery stores in the hot sun this past summer with clipboards. … And almost always, [people] responded with surprise that that wasn’t already required and were like, ‘Hell yes, I want to sign that petition.’”
Connaughton said that although Healey went back on her word, it still presents an opportunity for advocates.
“Because Governor Healey really did make that promise, I think more people are focused on it,” Connaughton said. “I’m hoping that the media continues to keep that story alive so more people are aware of what’s going on.”
Eldridge said that the public needs to get involved and convince other legislators to support passing transparency bills like his.
“There is a sense on Beacon Hill that, yes, transparency would be a quote-unquote nice thing, but it’s not a major issue. It’s not something that people deeply care about,” he said. “I think unless, not just progressives, not just some Republicans, but voters across the ideological spectrum really weigh in and say, ‘This is a big priority for me, I care about this,’ I think it’s going to be difficult to pass.”
“I think it is going to be challenging,” Connaughton said. “But right is right.
It’s Sunshine Week — a week that journalists use to highlight the importance of freedom-of-information laws. You can get involved by contacting the governor’s office here and contacting your state legislators here to tell them about your support for greater transparency. The bills mentioned in this piece are SD.131 (the Eldridge bill), SD.390 (the Rausch bill), and SD.2075 (the Galvin/Brady bill).
You can also try sending a records request to your city or town government or to a state agency. You can read more about the process of making a public records request in Massachusetts here.
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That’s all for now.