The race for the future of transparency in Mass
The race for the future of transparency in Mass
When it comes to public records in Mass, does it even matter who the secretary of state is? It’s complicated…
Hey everyone,
I’ve got a very long piece about public records policy and the secretary of the commonwealth election. If you haven’t cast your ballot yet, make sure you read this first.
The Secretary of the Commonwealth’s Office is often overlooked by voters, but it has many crucial functions: administering elections, registering businesses and nonprofits, investigating securities fraud. It’s also responsible for oversight of the public records statute—the law used by journalists, lawyers, policy advocates, and gadflies to keep state and local government transparent.
This coming statewide election, Democrat William F. Galvin, the entrenched incumbent seeking an eighth term, is facing a primary challenge from Boston NAACP president Tanisha Sullivan. Sullivan calls Massachusetts the “least transparent state in the country,” and she places much of the blame on her opponent.
While Galvin doesn’t use such strong language, he agrees that there are problems—but he places the blame on other state officials, particularly legislators who he says haven’t done enough to strengthen the law. At a debate hosted by WBUR this month, Galvin said he has “fought and succeeded at expanding the public records law and making a better enforcement [sic] than ever has been before.”
Sullivan, during the debate, rejected Galvin’s explanation: “He’s been in office for over a quarter of a century. The fact that we remain the least transparent, there’s got to be some responsibility taken by the secretary on that front.”
The 71-year-old Galvin “represents the last bastion of old-style Massachusetts Democratic party politics once dominated by old white Irish men,” Boston Herald columnist Joe Battenfeld observed in April. Galvin served as a state representative from 1975 until 1991, earning the nickname the “Prince of Darkness”—an unfortunate moniker for the man now in charge of the state’s sunshine statute. After a failed campaign for state auditor, he tried his luck running for secretary of the commonwealth. He won, and took office in 1995. For nearly 28 years since, Galvin has fended off challenges from Democrats and Republicans.
Sullivan stands in stark contrast. She has never held elected office. She has worked on civil rights issues like voting and police reform. At 48, she is part of a younger generation. She is also a Black woman, and if elected would be both the first woman and the first person of color to hold the state’s third-highest office. At a debate hosted by GBH this month, she said she is, first and foremost, a “practicing attorney” with two decades of experience. She also said she would bring to the role her “lived experience” as “a Black woman who is actively engaged in our communities.”
Galvin has touted his own experience, particularly in running elections. But at the WBUR debate, Sullivan criticized the incumbent’s “reactive status-quo leadership.” According to Sullivan: “This office must be more proactive, must be more deeply rooted in our communities.”
Sullivan argues that her leadership can reinvigorate the secretary’s office and transform it into a greater force for transparency; her online policy platform lists numerous ideas for doing so. Some, like redesigning the secretary’s website and digitizing more paper records, are important but mundane. Others, like using the office’s little-known power to hold hearings to improve the appeals process, are more ambitious.
“They Went Nowhere”
If someone is facing the all-too-common problem of a local government or state agency refusing to comply with a public records request, their primary recourse is to file an administrative appeal with the Public Records Division of the secretary’s office. The division is headed by the supervisor of public records, who is appointed by the secretary.
Galvin has described the supervisor as “independent.” However, the secretary can replace the supervisor at any time, according to state law. The supervisor is also subject to a policy preventing employees from speaking with the media without prior authorization from the secretary’s communications director.
But the system’s biggest problem appears to be that the supervisor does not have the power to enforce her decisions in court. If a government agency refuses to comply, the supervisor can refer the matter to a district attorney’s office or the attorney general’s office, which have the authority to file lawsuits.
The supervisor sometimes makes referrals to the attorney general’s office, but the system has proven dysfunctional. The AGO has a conflict of interest because it’s also responsible for defending state agencies in court—it even defends them against records suits brought by members of the public, and has often disagreed with the supervisor’s interpretation of the law.
“The problem with references to the attorney general is they went nowhere,” Galvin said during a 2015 episode of GBH’s Greater Boston. “What we discovered was that, very often, the attorney general had higher priorities than pursuing this matter.”
The late Alan Cote, who served as supervisor from 2002 to 2011, stopped referring decisions to former Attorney General Martha Coakley’s office in 2010. Shawn Williams, who succeeded Cote in 2012, resumed making referrals after Maura Healey took office as attorney general in 2015. Williams made just one referral that year.
Since 2016, he and his successors have made an additional 40 referrals, according to Chloe Gotsis, the press secretary for the attorney general’s office. The AGO has only initiated two lawsuits related to these referrals.
The first lawsuit, which the AGO filed in 2016, sought lists of criminal cases that the Boston Globe requested from three district attorneys’ offices in 2015. A Suffolk Superior Court judge sided with the AGO in 2018, but the district attorneys appealed. The Supreme Judicial Court upheld most of the lower court’s order in a 2020 opinion.
In August 2021, the AGO filed a lawsuit against the Boston Police Department to enforce a records request by NBC10 Boston. The lawsuit, which is pending, seeks internal affairs records related to Dennis White, who was appointed police commissioner but was placed on leave after two days and later fired when old allegations of domestic violence were reported by the media.
“We generally try to resolve matters without litigation whenever possible because of the amount of time involved,” Gotsis said. She pointed to the case against the district attorneys: “Between the pace of litigation and appeals, it took more than four years before the records were produced even though ultimately we won.”
Gotsis said the AGO began tracking the resolutions of referrals in 2018. Since then, the office has resolved 22 referrals, with 12 in the requester’s favor.
The AGO did not act on one referral “because there was no established law requiring production” of the records, did not act on one “because there was a related case pending before the Supreme Judicial Court,” referred one “back to the supervisor for further consideration of the applicability of a legal issue not previously considered,” and resolved seven in officials’ favor “after further review and response from the custodian [showed] that the custodian had satisfactorily demonstrated the applicability of a claimed exemption,” according to Gotsis.
Meanwhile, Healey—who upon entering office pledged “to make sure the public records law is enforced aggressively”—has defended government agencies that withheld records far more often than she has sued them.
Since 2015, the AGO has defended itself six times and other state agencies 56 times, according to Gotsis.
The press secretary disputed the idea that the attorney general has a conflict when enforcing the law. She said that the division of the office that enforces the law is separate from the one that defends state agencies against lawsuits.
“Under [the Healey] administration, there has never been a case where an enforcement referral was made to the Division of Open Government and then our Constitutional and Administrative Law Division then defended the state agency involved in the supervisor’s referral,” Gotsis said. “Our defense of a state agency in a public records lawsuit doesn’t equate to a disagreement with the supervisor over an enforcement matter. These are separate cases handled by separate divisions in our office.”
She added: “When we do represent state agencies in these lawsuits, we try to resolve the case by encouraging the agency to produce any documents as required and to only withhold documents that fit solidly within the exemption category.”
But in one noteworthy case, Healey’s office appealed a lower court’s decision requiring police departments to provide the Globe with police reports and mugshots related to officers who had been arrested for drunk driving. The SJC sided with the Globe in 2020.
The lack of power and lack of support from the AGO means the supervisor must walk a fine line. Rather than demanding that agencies produce documents, a typical decision from the supervisor will say that it is “unclear” how exemptions cited by an agency apply to withheld records and order the agency to provide a new response that complies with the law. This system allows agencies to simply ignore orders and can force requesters to file multiple appeals for the same reason.
This year, to make the process run more smoothly, the Public Records Division established the position of compliance supervisor, which has since been occupied by lawyer Angela Puccini. The compliance supervisor uses mediation “to facilitate adherence to the supervisor’s orders in an efficient and timely manner,” according to Debra O’Malley, the communications director for the secretary’s office.
However, Puccini has few resources to carry out her mission. She is supposed to have one nonlawyer staff member to help with her work, “but the position is currently in transition, as the person who was assisting her recently left the office,” according to O’Malley.
In 2016, the legislature passed the first major overhaul of the public records law since the ’70s. The update, spearheaded by the late Rep. Peter Kocot, put more limits on the fees that officials can charge for records, clarified the timeframes for responding to requests, and made other changes to improve access. But it did not address the issue of the supervisor’s lack of enforcement power.
“While much-needed improvements were made to the public records law in 2016, more change is needed,” said Justin Silverman, the executive director of the New England First Amendment Coalition. “It’s time to consider additional reforms that would give the public more power to enforce the law. The solution may be as simple as giving the supervisor of records authority to sue agencies on behalf of requesters.”
During the 1995/1996, 1999/2000, and 2001/2002 legislative sessions, Galvin unsuccessfully advocated for bills that would have established a five-member public records commission with the power to sue, according to copies of the bills maintained by the State Library.
“It would allow for tougher enforcement,” Galvin told the Globe in 2001. “It would be focused solely on the task of giving citizens better access to their government and reduce any inconsistencies that now exist.”
Galvin has continued to advocate for changes to the public records law since then, but he seems to have retreated from his position on who should enforce it. In 2015, he supported language that would have, among other things, required the AGO to give “deference” to the supervisor’s interpretation of the law—but it would not have given the supervisor the authority to sue. Galvin included this language in a proposed public records initiative that he failed to get on the ballot and subsequently asked the legislature to adopt it.
Sullivan, the primary challenger, said in a recent interview that she also sees a gap in the state’s enforcement of the public records law, but she is ambivalent about the issue of which office should hold the power.
“One of the ways to close the gap is for there to be a better working relationship between the secretary of state’s office and the attorney general’s office,” Sullivan said. “And yes, another way is to amend the law and provide for enforcement authority through the secretary of state’s office. Both of those pathways to me are viable pathways.”
Sullivan wants to make the process of referrals to the AGO more transparent. Currently, the secretary’s website has a database of the supervisor’s decisions, but it does not specify whether the supervisor has referred the decisions to the AGO or the outcomes of referrals. The only way to access this information is to file a records request with the secretary’s office or the AGO and read the documents. Sullivan promises to make this information “readily available in a comprehensive and accessible format that can be easily queried,” according to her policy platform.
“I Want to Shine a Light”
Sullivan also wants the secretary’s office to use more of the power that it already possesses—specifically the power to conduct administrative hearings as part of the appeals process.
The supervisor has the power to conduct hearings under state administrative procedures that are similar to those in court but can be less formal. Under the rules, a requester would be able to question witnesses and demand more information about why their records request was denied. If the requester or agency disagrees with the hearing officer’s decision, either can challenge it in court.
The Public Records Division has not held any such hearings under the current supervisor or her three most-recent predecessors, according to O’Malley. It’s not clear if prior supervisors ever held such hearings.
“Rather than these decisions happening behind closed doors, rather than the secretary of state’s office receiving these appeals and no one knows what’s going on with them, I want to shine a light on these requests,” Sullivan said. “And so I think that we should be using the public hearings as an option here, [so] that the public has an opportunity to actually be a part of, [to] witness, these issues as the secretary of state’s office is making a determination.”
O’Malley declined to comment on why the Public Records Division does not hold hearings.
“The secretary’s office seems to consistently come up with excuses for why it is not being proactive and looking for ways to increase transparency,” Sullivan said. “I am not going to be the secretary of state of excuses.”
Sullivan also wants to explore the possibility of establishing a “right-to-know” commission, citing the examples of Connecticut, Maine, and New Hampshire. “These commissions create a mechanism for independent reviews of individual cases and prevent unnecessary and costly lawsuits and delays,” her policy platform reads.
For decades, lawmakers have made ill-fated proposals for a commission. In recent years, Rep. Antonio Cabral has filed bills that would establish a five-member commission similar to the one that Galvin once supported. In April, the most recent version was reported favorably to the House Ways and Means Committee, where it died in August when lawmakers ended their formal session.
The proposed commission would be a part of the secretary’s office, but it would be composed of one appointee of the secretary, one appointee of the attorney general, and three appointees of the governor. The governor would be required to use one pick on a representative of the Massachusetts Newspaper Publishers Association and another on the Massachusetts Municipal Association, a group that lobbies on behalf of city and town governments.
To protect the commission’s independence, commissioners would have five-year terms and could only be removed for cause if a majority of the elected officials responsible for appointments agreed. The commissioners and their employees would not be allowed to hold elected office or seek election within one year of leaving the commission.
The commission would be responsible for hiring the supervisor of public records. The supervisor would then be responsible for appointing a chief administrative magistrate, who would appoint hearing officers and oversee the hearing process. The magistrate would have the authority to enforce the hearing officers’ decisions in court.
Sullivan said she is not committed to a specific structure for her proposed commission and would prefer to involve the public in shaping it.
“From a process standpoint, I would convene an advisory board to help actually design what the Massachusetts right-to-know commission would look like,” Sullivan said. “And certainly that would include elected officials, … [and] other community stakeholders, everyday people, unelected folks [who would] sit around the table and also consider what might work best here in Massachusetts.”
She compared the process to the work of the Boston Police Reform Task Force, on which she served. The panel held meetings with community members and proposed a list of reforms—such as the creation of a civilian review board, the Office of Police Accountability and Transparency—that the city later adopted.
“There are many lessons we can learn from what has worked—and what has not—in other states,” said Silverman, the NEFAC director. “We need to start taking a closer look at what more can be done here in Massachusetts.”
In Connecticut, one of the states cited by Sullivan, requesters who are denied access to records can seek a hearing with the state’s nine-member Freedom of Information Commission. Dan Barrett, the legal director of the American Civil Liberties Union of Connecticut, said the process can be helpful.
“A commission can have some benefits I think principally for people who are not frequent requesters and they don’t want to hire a lawyer,” Barrett said.“[If] a person is looking for, let’s say, a single document from the local school board, maybe they don’t want to file a lawsuit, … [but] the commission is reasonably user friendly. There’s very little procedure. You don’t have to write briefs, that kind of stuff.”
Barrett said the hearing model has advantages over the system of written appeals used in Massachusetts.
“Public agencies, probably from sea to shining sea, will virtually always overclaim exemption,” he said. “It is extremely useful and in fact vital to put them to their proof. … So the hearing can be very useful, because you get to interrogate a witness.”
The Connecticut ACLU attorney continued: “It’s extremely common for the witness provided by the agency to be unable to identify, for example, how many documents are in dispute. It’s extremely common for the witness to have never read the documents.”
Barrett’s chief complaint is that Connecticut requires requesters to go through the hearing process before going to court, which can slow things down. He said it takes months to get a hearing and additional time to get a decision, and the whole process can take more than a year.
After the decision, either side can file an appeal in court. “And that kicks off an odyssey that can take years, because first the trial court’s going to rule on your appeal, then the appellate court’s going to rule on your appeal, and then maybe if they take it the state Supreme Court will rule on your appeal,” Barrett said.
He said that some agencies, especially police and prosecutors, are “energetically resistant to disclosures,” and use the hearings and courts to delay releasing records. It’s common, he added, for agencies to wait until the day a hearing is scheduled then agree to release records.
Barrett’s conclusion: “I would say if any jurisdiction is looking to a commission as a means of making public records access quicker and more user friendly, that’s great—but I would not recommend that it supplant a private right of action to go to court.”
In Massachusetts, requesters can go directly to court if they are unsatisfied with a response—they do not need to wait for a decision from the supervisor. But the simple written appeals system sees much more use than the courts. Requesters file thousands of appeals each year, but no more than a handful of public records lawsuits.
The 2016 law added an important provision that generally requires judges to order officials to pay the attorney’s fees of people who successfully sue for access to withheld records. Prior to the update, requesters needed to either pay a lawyer up front or find a lawyer willing to do pro bono work.
Even with the reform, few lawsuits have been filed. There aren’t many lawyers who take on this type of case—perhaps because it can sometimes take years to get paid.
In October 2018, the Telegram & Gazette sued the city of Worcester for refusing to release internal affairs records documenting investigations of alleged police misconduct. The T&G’s two lawyers, Jeffrey J. Pyle and Michael J. Lambert, worked on the case for about two-and-a-half years before a Worcester Superior Court judge ruled in the paper’s favor in June 2021.
The lawyers then had to argue that they were entitled to attorney’s fees and expenses, which the city opposed. The judge awarded about $101,000 in January. She also found that the city’s arguments were so off base that it acted in bad faith and ordered it to pay $5,000 in punitive damages to a state fund.
The lawyers were disappointed to learn that the judge awarded less than half of $217,000 they requested for their more than three years of effort. The paper’s lead attorney, Pyle, is now appealing the judge’s decision, arguing he and his colleague are entitled to more.
The case, despite ending in victory, shows that the law remains tilted in officials’ favor. The city forced a protracted lawsuit, even though the T&G had successfully sued it for withholding the same type of records twice in the preceding two decades. The price borne by taxpayers was, evidently, worth it to former Worcester City Manager Ed Augustus—he succeeded at keeping the police records away from the city’s paper of record for years, denying a reporter the opportunity to dig through the documents when they were most newsworthy.
Most requesters who are denied access to records won’t have the time or inclination to find a lawyer and pursue a lawsuit. Adding the option to request a hearing instead of going to court would give requesters another tool for prying records from the hands of recalcitrant officials like those in Worcester.
“Attempting to Follow the Law”
This year, Galvin has not made public records a signature issue—his bare-bones campaign website has a list of his top four priorities, and public records are not among them. But when the secretary has spoken on the subject, he has claimed success, citing the passage of the 2016 law.
During a February Greater Boston appearance, Galvin took credit for limits that the update placed on the ability of municipalities and state agencies to charge fees for providing public records.
“We got [the fees] reduced,” he said.
But Galvin’s office testified against one of the law’s key fee limitations: a rule that officials cannot charge fees when they fail to respond to requests on time. In its testimony, the office said that the rule would punish officials who act in good faith and encourage officials to either “rush” their responses or request unnecessary time extensions.
The rule was included in the law in reaction to the fact that many officials would simply ignore requests or take as long as they wanted to respond. In 2015, a massive test by the Boston Globe, WCVB, and Northeastern journalism students found that less than half of the state’s 351 cities and towns responded to requests within the required 10 days.
Another important limitation included in the 2016 law caps the hourly rates municipalities and state agencies can charge to search for and redact records at $25 per hour. Galvin’s office testified on behalf of a provision included in the final bill that allows agencies to petition the supervisor to remove the cap for specific requests. The office testified that this provision was necessary so that cities and towns could “employ the assistance of legal counsel in providing an appropriate response to complex requests.”
In March 2016, it seemed likely the legislature would pass the public records overhaul that, among other things, lowered copying fees for paper records to five cents per page. But before it did so, Galvin’s office swooped in and unilaterally issued a new regulation that lowered the fee to the same amount.
The change, though for the better, raised an obvious question: What took so long? From 1983—more than a decade before Galvin took office—until that point, the regulations allowed officials to charge 20 cents per page for photocopies and 50 cents per page for printed copies. (Also noteworthy is the fact that Galvin’s proposed 2015 ballot question would have only lowered the fees to 15 cents for black-and-white copies and 25 cents for color copies.)
Though Galvin takes credit for the 2016 reform, mid-2010s media attacks on his office’s performance were seemingly among the driving forces that pushed the legislature to act.
In 2014, the Globe reviewed 50 appeals decided by Shawn Williams, who was supervisor at the time. The paper found that Williams ruled against government officials who withheld information or charged fees only 20% of the time.
In 2015, Williams faced heavy criticism from media and advocacy groups for, among other things, allowing police departments to withhold arrest reports and mugshots for officers accused of drunk driving from the Globe. In March of that year, the Globe, the Herald, and other newspapers across the state published editorials in what they called “an unprecedented, coordinated condemnation of Galvin’s rulings on the state’s public records law.”
During the 2015 Greater Boston appearance, Galvin said he did not think Williams should be replaced because he was “attempting to follow the law.” Galvin said that Williams’ decisions about the police records were legally correct. However, Galvin’s comments were not borne out when the courts ruled in the Globe’s favor, one of several cases where the state’s largest newspaper sued to overturn Williams’ decisions.
In August 2015, the legislature was considering a version of the bill that was later passed in 2016. But in response to the criticism, Galvin proposed a ballot question with some timid reforms.
Silverman, the NEFAC director, said at the time that Galvin didn’t consult any groups that supported the bill before filing the ballot question, that the question was weaker than the bill, and that the question was a “distraction” that could make it “more difficult” to pass the bill.
Galvin, the state’s chief elections officer, dropped the ballot question in December 2015 without submitting the required signatures, telling the State House News Service that he faced “some hiccups” ensuring they were properly documented and certified but was confident the legislature would pass a bill.
Shortly after Gov. Charlie Baker signed the 2016 bill into law, the group Investigative Reporters and Editors nominated Galvin and Williams for the group’s annual tongue-in-cheek Golden Padlock award, which it bestows upon secretive government officials and agencies. (The pair later lost the award to the US Department of Veterans Affairs.)
IRE said that the secretary and his supervisor were nominated “for supporting the withholding of a wide range of public records.” IRE noted that the Globe had been forced to file several lawsuits because of Williams’ decisions, “an expensive and time-consuming process that has dramatically delayed release of vital public records.”
Sullivan brought up the Golden Padlock nomination at the WBUR debate.
“I don’t know what that means,” Galvin responded.
“[It means] we have a chief public information officer who has done nothing to help increase transparency,” Sullivan said.
In Galvin’s telling, the problems with the public records law stem primarily from the legislature. But he is also happy to take credit for the legislature’s work when it suits him. During the February Greater Boston appearance, Galvin brought up the rule requiring judges to award attorney’s fees.
“Just last week, as a result of the law that I supported [and] worked on, … the Worcester Telegram was able to claim over $100,000 in [attorney’s] fees for getting access to police records,” Galvin said.
Galvin supported an attorney’s fee rule, but his office actually advocated for a weaker version in its testimony to the legislature. This alternative would have given judges complete discretion over whether to award fees. Galvin’s office testified that this would be “in the best interest of the taxpayers, who will ultimately be required to pay these fees and costs.”
Galvin’s failed ballot question included another version that would have only allowed requesters to recoup attorney’s fees if they could prove officials acted in bad faith, a high bar that the T&G managed to clear but one that would discourage lawyers from taking on novel cases. Galvin told the State House News Service at the time that he chose the stringent standard because he didn’t want to create a “cottage industry” of frivolous lawsuits.
During the GBH debate, Galvin played fast and loose with his words, seemingly attempting to take credit for the T&G’s lawsuit. After mentioning the change to the law about attorney’s fees, he said: “As a result of that, we’ve had a sea change in terms of the way public records have been responded [sic]. We just won a big case up in Worcester.”
At no point during the debate did Galvin clarify that the lawsuit was brought by the newspaper, not his office.
At a debate during the 2018 election, Galvin said that Rebecca Murray, who was supervisor at the time, was doing “an excellent job.” As an example, he pointed out that she had been deciding appeals within 10 business days.
Galvin’s office began deciding appeals within 10 business days in response to the 2016 law, which required it to do so. His office could have decided appeals within 10 days prior to the update taking effect—instead, it did not institute a rule about timeliness and typically took months.
During the 2015 Greater Boston appearance, host Jim Braude confronted Galvin about the long waits. The secretary responded that it wasn’t true that decisions took months. Moments later, he contradicted himself by saying that appeals were generally closed within 90 days.
After the 2016 law passed, the secretary’s office proposed regulations that would have allowed it to ignore the 10-day limit by starting the count when it assigned an appeal number instead of when it received an appeal. It removed this language after being criticized at a public hearing.
To the Public Records Division’s credit, it has managed to turn around appeals on time despite seeing a huge increase in recent years. Appeals were already on the rise prior to the 2016 law’s passage, but they have increased even more dramatically since then, according to data on the secretary’s website. In 2016, requesters filed 1,231 appeals. Last year, they filed 2,994.
During the 2018 debate, Galvin also said that Murray sided with requesters over government agencies 97% of the time. In response to a records request, a Public Records Division employee said that Galvin was likely referencing an infographic on the secretary’s website that says Murray upheld 3.25% of officials’ exemption claims in 2017, her first year as supervisor.
The employee was unable to locate any documentation showing how this number was calculated. It’s possible the statistic was determined using data from the division’s appeals-tracking system that is not visible on its website. However, the secretary’s office did not respond to a records request for this data in time for publication.
Murray was appointed supervisor in late December 2016, just days before the public records update took effect. Her predecessor, Williams, stepped down to take a job directing Boston’s responses to records requests.
In July, Galvin promoted Murray to general counsel. He replaced Murray with Manza Arthur, a lawyer who has been working in the Public Records Division since 2017 and was serving as assistant director.
Beacon Hill Blackout
In Massachusetts, the governor’s office, legislature, and judiciary are all exempt from the public records law. But in February, Sen. Jamie Eldridge filed a bill drafted by Galvin that would apply the law to all future governors.
“We need to start addressing the egregious situation we have,” Galvin told the Boston Globe. “The idea that the most powerful position in the state and its records are not subject to public scrutiny is absurd.”
Both he and Sullivan have said they want to apply the law to the three exempt branches. However, Galvin opted for a bill that would have just affected the governor’s office because he didn’t think the legislature would support a more expansive one.
“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.”
But Galvin’s strategy failed: The bill was reported to the Joint Committee on State Administration and Regulatory Oversight, where it died.
For decades, governors have relied on the Supreme Judicial Court’s 1997 Lambert ruling to claim that they are exempt from the public records law. 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.
Supervisors Cote and Williams accepted that this decision completely exempts the governor’s office. However, Murray reopened the issue in 2017. After Gov. Baker’s office refused to provide the Globe with a log of constituent calls, Murray referred the paper’s appeal to the attorney general’s office. However, the AGO, under 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 in February. “The Lambert case was about judicial nominees. It wasn’t about the other activities of the governor’s office.”
When Galvin announced his bill, most of the gubernatorial candidates expressed some level of support for opening up the office’s records. The group included AG Healey, who is now almost certain to be the Democratic nominee for governor.
“Based on their agreement, I assumed that there would be support for [the bill],” Galvin said in the WBUR debate. “The fact that the legislature has not moved is further evidence of their own intransigence on the issue of public records.”
Sullivan said that the bill was another example of the secretary’s reactive leadership style.
“That’s 30 years too late,” she said in a February interview. “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.”
“It was funny to me when Bill Gavin suddenly decided to file his bill,” Jonathan Cohn, the policy director of the left-wing group Progressive Mass, said in a recent interview. “He’s been around for a while.”
Cohn’s group endorsed Sullivan after an overwhelming percentage of its members voted to support her. He said that he got to know Sullivan through her work on voting rights and racial equity in schools, and he agrees she will be a better advocate for change than Galvin.
During the February episode of Greater Boston, Jim Braude asked Galvin why he was only now getting around to proposing legislation to open up the governor’s records. Galvin responded by falsely claiming that he had already done so in 2015 when he proposed his ballot question. In reality, his proposal contained no language addressing the governor’s office.
During the WBUR debate, Galvin again made this false assertion. After talking about how he supported applying the law to the governor, legislature, and judiciary, he said, “I have tried to change this for many, many years—initiated an initiative petition.”
It is true that lawmakers have little appetite for opening up additional state records—particularly their own—for public inspection. When they passed the 2016 law, they punted on the issue of the governor, legislature, and judiciary by creating a commission of lawmakers to study the matter.
The commission did not bother to meet until after the Globe started asking questions. Then the legislature gave the commission an 11-month extension on its deadline. Finally, the commission disbanded in 2019 without issuing a report. “Beacon Hill pols prefer less scrutiny of Beacon Hill pols,” a CommonWealth headline observed.
Last session, Sen. Becca Rausch filed a bill that would have applied the public records law to both the governor and legislature. Eldridge filed another bill that would only affect the legislature. Both bills were killed with study orders in February.
“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 in an interview at the time. He added that he was hopeful the election of new legislators would shift the balance in favor of transparency.
While convincing the legislature to act will prove difficult, Sullivan argues she will put the secretary’s office to better use than Galvin.
“This office must be a better partner … to the other branches of government,” she said. “This office cannot continue to operate on an island. There must be better partnership and coordination with the legislature.”
“[She’s] somebody who really values the idea of proactive and engaged leadership,” said Cohn, the Progressive Mass policy director. “I’m very happy to see that she [is] trying to challenge Bill Galvin, who is in many ways the antithesis of that.”
Cohn said Sullivan has good relationships with policy advocates but Galvin does not. As he put it: “If you have somebody who shares the goals and is wanting to work with the groups that are doing the advocacy on an issue, to collaborate with them about where pressure needs to go, that makes a lot of difference, rather than having a secretary of state who actively despises most of the advocacy community.”
Whoever wins the primary will face Republican Rayla Campbell, a far-right anti-LGBTQ demogogue who has used her campaign to spread inflammatory misinformation about schools and libraries. Campbell has called Galvin a “misanthrope” and Sullivan “a crazy radical extremist.”
The state Democratic Party endorsed Sullivan at its June convention after 62.4% of delegates voted for her. But she nevertheless faces an uphill battle unseating her rival. In 2018, Boston City Councilor Josh Zakim won the party’s endorsement, but Galvin still trounced him.
Galvin’s name is one of the most recognizable in state politics thanks to his decades in office, his frequent appearances in taxpayer-funded public-service announcements, and his massive warchest that allows him to buy all the ads he could want.
A MassINC poll based on August interviews with likely Democratic primary voters found that 53% supported Galvin, 20% supported Sullivan, and 23% said they were undecided. Most of the voters said they had never heard of Sullivan.
Sullivan said she doesn’t concern herself with polls: “I focus on what we’re doing in our communities, in municipalities across Massachusetts, connecting directly with voters.”
Galvin’s campaign did not respond to requests for an interview.
Election Day is Sept. 6. Early mail-in and in-person voting is already underway.
Correction/Update (9/5/2022): This piece was corrected to say that the supervisor has made 40 referrals since 2016, not 2015, and the AGO has resolved 22 since 2018, not 2015. It was also updated with additional quotes from the AGO’s press secretary disputing that the office has a conflict.
Thanks for reading. As always, please consider a paid subscription to this newsletter to support my work.
Alternatively, if you want to support my work but don’t want to receive emails or if you want to make a one-time payment, you can send money to my PayPal tip jar.
And please send me tips of the nonmonetary variety! I mostly write about public records and police misconduct. I will write about anywhere in the state, and I’m always looking for new things to cover. If you have a frustrating story about trying to obtain public records or a story about the police that isn’t being told, tell me about it.
You can email me at aquemere0@gmail.com or send me a direct message on Twitter.
That’s all for now.