Public records appeals decrease for first time in years
But the number might increase again this year thanks to the new governor’s pledge to comply with the law
The number of public records appeals in Massachusetts decreased for the first time in recent memory, according to data from the Public Records Division of the Secretary of Commonwealth’s Office.
Last year, the public made 2,693 appeals — a decrease from the previous year’s total of 2,994.
However, last year’s total was the second highest in the database, which goes back to 2014. It’s a sign that appeals might be plateauing rather than trending downward.
Last year, the Public Records Division added the position of compliance supervisor, which has been filled by attorney Angela Puccini. The compliance supervisor mediates when an agency fails to comply with an order from the supervisor of public records, who heads the division.
The addition of the compliance supervisor likely contributed to the decrease, but it’s not clear how much. The division does not publish data showing how many cases have been handled by the compliance supervisor.
“While we certainly hope that outreach, education, and a focus on compliance contributes to a decline in the need for appeals, it would be difficult for us to quantify the effect of those things on the number of appeals that were ultimately opened,” said Debra O’Malley, the communications director for the secretary’s office.
She added: “It is also possible that the decline was due in part to some frequent appellants choosing not to file as many appeals in 2022 or being involved in litigation relating to their appeals.”
Appeals have increased dramatically in recent years, from 774 in 2014 to the record number in 2021. The Public Records Division has attributed this trend to an update to the public records law that took effect in 2017.
In part, the law requires the division to issue decisions within 10 business days. Before the law took effect, there was no legally mandated time frame and the division generally took months, limiting the process’s utility.
However, the trend began before the law took effect, so it is probably also the result of greater awareness of the law, changes in technology, and other factors.
O’Malley said the secretary’s office has hired additional attorneys since the law was updated. She also said the office added two administrative staffers this week.
“But the workload continues to be a challenge,” she said.
“Like most employers, we are dealing with the ongoing labor shortage, but we also rely on the Legislature for funding of our office,” she continued. “The Legislature has not shown a great enthusiasm for expanded enforcement of the public records law.”
This year, the Public Records Division might receive an influx of appeals related to the governor’s records. The newly inaugurated Governor Maura Healey pledged shortly before taking office that her administration will voluntarily comply with the requirements of the law.
In Massachusetts, the Legislature and judiciary are both completely exempt from the public records law, and past governors have relied on the Supreme Judicial Court’s 1997 Lambert ruling to also claim immunity.
The SJC 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.
Even if the Healey administration does not claim immunity under Lambert, it can still use the law’s exemptions for privacy, personnel information, deliberative processes, and more to withhold countless records.
“Of course, if a requester receives a dissatisfactory response from the governor’s office or an agency under the governor’s office, the appeal will be opened, as required,” O’Malley said.
In 2017, after then-Governor Charlie Baker’s office refused to provide The Boston Globe with a log of constituent calls, then-Supervisor of Public Records Rebecca Murray took the position that the governor’s office is not fully exempt.
However, the attorney general’s office disagreed with Murray’s interpretation of the law and refused to enforce her decision. The attorney general at the time was Healey.
On Friday, on the GBH program Talking Politics, Healey’s commitment to voluntarily comply with the law got a mixed reaction from attorney Robert Bertsche, general counsel for the New England Newspaper & Press Association.
“It’s hugely significant,” he said. “And it’s not worth the paper that it’s not written on.”
If a requester files a lawsuit against the Healey administration for withholding records, “the judge is going to say, ‘I don’t need to apply the public records law because it doesn’t apply to the governor,’” Bertsche said.
He added: “There is a way around that, which is to actually change the law — to make it explicit that the governor is covered.”
In the last legislative session, Senator Jamie Eldridge introduced a bill written by Secretary of the Commonwealth William F. Galvin that would have applied the law to the governor’s office.
Separately, Eldridge introduced a bill that would have applied the law to the Legislature, and Senator Becca Rausch introduced a bill that would have applied the law to both the governor and Legislature.
All three bills died in committee.
Galvin told GBH that he does not think the Legislature is likely to open up its records for public inspection any time soon.
“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?”
Still, Healey’s public records promise presents an opportunity for advocates to press for updating the law to at least include the governor.
With the new legislative session underway, now might be a good time to look up your legislators and let them know.
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