Baker administration making public records progress

Appeals plummet; still, compliance not perfect

A clarification has been added to this story.

THE BAKER ADMINISTRATION is making significant progress in fulfilling the governor’s pledge to make it easier and cheaper for the public to access records from his administration.

Baker’s new procedures require every agency to designate a “records access officer” to receive and track public records requests, to respond to questions, to get documents out the door faster, to lower or eliminate fees, and to provide public records electronically whenever possible. The governor also ordered state agencies to put frequently requested records online.

Baker gave the agencies the month of August to implement the new public records procedures, which became effective on September 1, 2015.

Based on public records appeals challenging the administration’s failure to turn over information, the governor’s new system seems to be having an impact.

For the four-month period prior to Baker announcing the new procedures (April 1, 2015 to July 29, 2015), there were 108 public records appeals filed with Secretary of State William Galvin against various agencies in the Baker administration. Galvin ruled against the agencies in 90 percent of the appeals, and 76 percent of those losses were for the failure of the agencies to simply respond to the requests. (Former governor Deval Patrick’s numbers for the last four months of his tenure were very similar.)

In comparison, for the four-month period after Baker’s new procedures were implemented (September 1, 2015 to December 31, 2015), appeals against state agencies plummeted 51 percent, from 108 to 53. The Baker administration lost 89 percent of the appeals, with three-quarters of the losses for failing to respond.

In both of the time periods examined, the two major state violators of the Public Records Law were the MBTA and the Massachusetts State Police. 

“A decline of this magnitude indicates the administration isn’t just talking transparency, it’s living it,” said Mary Connaughton, director of government transparency at the Pioneer Institute in Boston.

CommonWealth also sought to test the Baker administration’s responsiveness to public records questions under the governor’s new approach. An anonymous email was sent to the records access officers at 24 state agencies in December and January, which included the governor’s office, most of the executive offices, and a number of their sub-agencies.

Using the email address provided by the agencies on their websites, each one was asked the same question: Is it possible to come in to the office and look at records instead of paying for copies?

Three agencies failed to respond to the inquiry, including the MBTA, Public Safety, and the Massachusetts State Police. Three others — Early Education and Care, Elder Affairs, and the Massachusetts Board of Registration in Medicine — failed to respond to the initial inquiry and only answered after a followup call.

For the agencies that did respond, most responses came from their lawyers and indicated that the records could be examined, as the law allows, in person. The fastest responses came from the Division of Banks (18 minutes) and the Executive Office of Education (39 minutes), while the slowest were from the Executive Office of Housing and Economic Development (10 calendar days) and the Department of Higher Education (14 days, but a spokeswoman says the agency’s representative was away on vacation for 6 of the 14 days).

Many of the agencies said they would likely waive fees and offered to provide the records electronically.

Most agencies expect the public to submit records requests via email. Few provide mailing addresses for submitting requests in writing or phone numbers for those with questions. The names of records access officers are rarely provided and in some cases (Transportation and two education departments) agencies don’t make it easy to access information about filing records requests.

The Registry of Motor Vehicles provides no information on its website about how to file a public records request, not even a mention of a records access officer.

Baker himself is not subjecting his office to the public records procedures he is imposing on his agencies. Like his predecessors, Baker believes his office is not covered by the Public Records Law because of the so-called Lambert decision of the Supreme Judicial Court. As a result, he chooses which documents to release.

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Connaughton, of the Pioneer Institute, said Baker should reject the Lambert decision. “Not only would transparency advocates cheer,” she said, “the precedent would be an historic step to catapult Massachusetts up from near the rock-bottom national rankings in terms of transparency.”

The Senate on Thursday takes up its version of Public Records reform but, like the House bill, the measure does not seek to bring the governor’s office under the law’s umbrella. The House version seeks to create a committee to study whether the governor, Legislature, and judiciary should be exempt. The Senate bill does not include that section but it could be added as an amendment.