Fix the broken Public Records Law

Award attorney fees if documents are unjustly withheld

WE IN THE cradle of liberty think of ourselves as national leaders when it comes to government openness and democracy. After all, Massachusetts colonists used public “broadsheets” to inform people about tyrannical acts by the British crown, sparking the American independence movement. And early on in the founding of our nation, lawmakers recognized that an informed citizenry was an essential element of a democracy.

Given this proud history, it is ironic, and not a little sad, that Massachusetts is now ranked among the worst in the nation when it comes to government transparency. The Center for Public Integrity gives Massachusetts an “F” grade in its most recent 50-state survey of public access to information. Journalists, concerned citizens, and others with a need — and right — to know how our government is working are being shut out by a law that hasn’t been meaningfully updated in more than 40 years.

Simply put: our public records law is broken.

Municipal and executive branch records in Massachusetts are meant to be public unless specifically exempt by the law. In practice, however, agencies routinely deny access to public records with impunity. They get away with it because of a gaping hole in the law. In all but three other states, courts can award attorney fees to people who are forced to go to court to obtain public records. Attorney fees provide incentives for government agencies to take the law seriously, yet such fees are not authorized in Massachusetts. As a result, government agencies face no consequences for being public records scofflaws. Indeed, without the enforcement mechanism of attorney fees, bureaucrats have every incentive to simply ignore records requests, and do so regularly in ways that undermine the public’s trust in government.

Deval Patrick’s administration and the Massachusetts Port Authority, for example, fought the Boston Globe for four years in an effort to withhold information on scores of people who had received secret payments from the state to settle lawsuits and employment disputes. The state finally released the information, but only after a judge ordered the administration to do so. Still, administration officials suffered no consequences for dragging out the process and running up the legal bills at taxpayer expense. Few ordinary citizens and media outlets have the deep financial pockets needed to battle such blatant refusals by government officials to comply with the law, particularly absent any prospect of recouping attorney fees.

Sometimes, it’s hard to fathom why officials keep records secret. Consider the case of writer Craig Shibley. In January 2014, he was reflexively denied access to records about a 1951 murder on the grounds that an investigation was ongoing, even though the suspect had died decades before, and a State Police spokesman admitted the case was not under active investigation. Last September, one day after the Boston Globe ran a story critical of the Secretary of State’s handling of public record appeals, the State Police were ordered to run over the requested records. To date, however, the police have produced only one document, leaving both  Shibley and the public in the dark about this 63-year-old cold case.

Other times, excessive government secrecy may actually endanger lives. When the Massachusetts Department of Children and Families came under public scrutiny after losing track of a young Fitch-burg boy, Jeremiah Oliver, who was later found dead, the public demanded answers. Rather than shining a light on what led to Oliver’s death and how similar deaths could be prevented, DCF officials doubled-down and stopped responding to public records requests.

Similarly, the Boston Globe in December reported that Massachusetts police departments, including Boston’s and the State Police, often hide from public scrutiny details of the drunken driving incidents involving their officers. The Globe reported that at least 30 law enforcement officials have been charged with drunk driving while off-duty since the start of 2012. Three people and more than a half-dozen others were injured in crashes involving officers. Rather than shining sunlight on this obvious threat to public safety, “police put up roadblocks to getting information,” the Globe reported. The State Police, for example, refused to respond to a request for reports on eight officers suspected of drunken driving, except to indicate they may demand more than $1,000 for the records. The Boston Police Department, meanwhile, withheld the names of five officers arrested since 2012 for drunk driving, asserting that the information is “protected,” although the BPD regularly identifies civilians arrested for drunk driving on its public blog.

Unfortunately, while the Commonwealth never pays for its failure to abide by the law, the public always pays a price — either in secrecy or in hefty fees for public information. Charging exorbitant amounts for records requests is yet another way that Massachusetts agencies hide their actions from public view.

In 2013, for example, the Massachusetts Executive Office of Health and Human Services demanded $70,000 for records showing how many newly-hired state employees had immediate relatives on the state payroll. Requiring new hires to fill out so-called “sunshine disclosures” was supposed to limit nepotism in state government. Instead, the agency managed to hide possible backroom hiring deals by making it too expensive for anyone to actually review the sunshine disclosures.

Similarly, when CommonWealth magazine and Fox News tried to document whether Boston city employees and their relatives were winning the affordable housing lottery more often than members of the general public, the Boston Redevelopment Authority demanded $47,000 to produce documents that BRA officials admitted were public records.

Too often, stories of public agencies over-charging regular citizens border on the absurd. In this category is the blogger who sought records of parking tickets in the city of Somerville and was told it would cost him $200,000 for the city to fill his request.

To run up costs, agencies frequently provide records in paper or other non-searchable form, even when digital records, which are cheaper and more useful, already exist. This includes printing out records obviously created in electronic form, such as spreadsheets or emails, and charging the requester for the printing costs.

In 2014, for example, the Springfield Police Depart-ment demanded that the American Civil Liberties Union, a public interest organization, pay nearly $18,000 for computer printouts of emails regarding an experimental and controversial police program. And in 2013, the Boston Police refused to give a reporter a spreadsheet in its original format. Instead, they insisted on converting it to a PDF file, which cannot be easily searched and analyzed.

It’s time to update the Massachusetts Public Records Law. Fortunately, Massachusetts has three immensely capable leaders positioned to do this: House Speaker Robert DeLeo, incoming Senate President Stanley Rosenberg, and Gov. Charlie Baker.

DeLeo already is a proven government reformer. He has led efforts to modernize our election systems and bolster campaign finance disclosure laws. Fixing the Massachusetts Public Records Law would cement DeLeo’s legacy as a champion of good government and democracy.

Rosenberg, similarly, has shown both an ability and an inclination to tackle tough government reforms. Together with partners in the House, Rosenberg led what has been widely lauded as the Commonwealth’s most transparent and equitable redistricting process, instilling confidence in fair elections going forward. Rosenberg’s experience and good-government instincts make him uniquely poised to make Public Records Law reform a priority.

Baker also has the right stuff when it comes to updating the Public Records Law. In the late 1980s, he led the Pioneer Institute, a think tank that prizes government accountability. The institute recently called for Massachusetts to adopt a public records law similar to one in Florida, which is cited as the gold standard for freedom of information. Fixing the Massachusetts Public Records Law thus is a bipartisan cause.

Given the Commonwealth’s history as a model for open and accountable government, Massachusetts can stop this slide into secrecy. The reforms necessary to turn around our state’s shameful failing grade are eminently achievable. Solid legislation sponsored by Northampton Rep. Peter Kocot and others contains the essential building blocks.

First, and foremost, Massachusetts should join the overwhelming majority of states that have evened the scales of justice by giving courts the power to award attorney fees when public information is withheld from the public. On some issues, there’s pride in being an outlier, but not when it comes to keeping public information under wraps.

Second, there’s no reason ordinary people should have to pay excessive fees for freedom of information requests. There are many ways to bring costs down, including providing files in electronic form, doing away with the cynical practice of deploying lawyers to censor information that may embarrass an agency, and simply lowering outdated per-page fees for printing and copying.

Finally, streamlining the public records system would save both time and money. Each state agency could assign a point person to respond to public records requests and keep a general index of the kinds of records the agency holds. This would enable people to make more tailored requests, and the point person would have the requisite know-how and experience to respond quickly and efficiently. Simple improvements to modernize the process would save money and help to restore public trust in government.

Our founders believed in a transparent government. They knew, as we do today, that democracy dies behind closed doors. The people have a right to know how we are being governed, but this can only happen if we fix our broken public records system.

Meet the Author

Carol Rose

Guest Contributor

About Carol Rose

Executive Director, ACLU of Massachusetts

About Carol Rose

Executive Director, ACLU of Massachusetts

It’s time to restore the legacy of government transparency necessary to ensure democracy for future generations. DeLeo, Rosenberg, and Baker have an opportunity to work across the political aisle to rebuild the public’s faith in government, while upholding the trust that the voters of Massachusetts have placed in them. Reforming the public records law is the place to start.

Carol Rose is executive director of the American Civil Liberties Union of Massachusetts.