Another in a series of occasional articles on public records and open meetings issues.
The Boston Globe is suing eight Massachusetts executive agencies plus the Massachusetts Port Authority and the Office of the Comptroller for their refusal to provide the names of employees who have received substantial severance and settlement payments, despite being ordered to do so by the secretary of state.
Last year, Globe business reporter Todd Wallack asked each of the agencies for copies of any “separation, severance, transition or settlement agreements” made since January 1, 2005 between the agencies and their employees that include compensation, benefits, or other payments worth more than $10,000, which he subsequently narrowed to $50,000 or more. The Globe’s request was the focus of an earlier report on public records appeals in CommonWealth.
Several dozen records were eventually turned over to Wallack by Gov. Deval Patrick’s office, but with the names and other identifying information regarding the employees redacted based on a variety of claimed exemptions.
“While we understand that employee names, positions, and salaries are publicly available, the types of agreements you have requested are far more personally sensitive,” wrote Mark Reilly, the governor’s legal counsel, in a letter to Wallack. “The agreements relate to personal disputes often involving employee discipline including termination.” Massport and the comptroller cited similar reasons.
The Globe argues in its lawsuit that the records it is seeking are not personnel records that are off limits, but rather are more like salaries and other forms of compensation about which the public has a right to know.
Globe editor Martin Baron says the newspaper is filing the lawsuit to uphold a simple but important principle. “Taxpayers are entitled to know who is getting their money,” he says. “When the government doesn’t release that information, and we are convinced they’re legally obligated to provide it, we will press the issue — in court, if necessary.”
Reilly says the settlement agreements are public records but not the names of the individuals themselves. “Based on prior rulings of the Supreme Judicial Court, we believe that we are legally bound to respect privacy interests of individual employees in these circumstances,” he says.
Last year, before the Globe went into court, Wallack, the Globe business reporter, filed an appeal with Secretary of State William Galvin’s office, seeking unredacted versions of the documents, noting the settlements involved millions of taxpayer dollars. In one case alone, according to Wallack, an employee was awarded more than $300,000.
Last October, Alan Cote, who handles public records appeals on behalf of Galvin, ruled in Wallack’s favor. When the governor refused to comply, the Globe went into court seeking a preliminary injunction ordering the agencies to produce the records so the “public can evaluate for itself the performance of public employees in making and paying claims brought against the Commonwealth.”
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Several bills strengthening the state’s Public Records and Open Meeting Laws are pending on Beacon Hill.
One bill, jointly filed by Sen. James Eldridge of Acton and Rep. Antonio Cabral of New Bedford, would make all the administrative records of the judicial branch subject to the Public Records Law, including those of the Probation Department and the office of the chief justice of administration and management
Supreme Court Chief Justice Roderick Ireland is noncommittal about the legislation. “I support transparency in the judicial branch,” he says. “But the details of the bill would need to be analyzed by the Court before I could comment on the substance of the proposed legislation.”
Secretary of State William Galvin has filed two pieces of legislation that would wrest enforcement powers over the Public Records Law away from Attorney General Martha Coakley.
Galvin’s division of public records, which is headed up by a supervisor of public records, hears appeals from citizens who encounter difficulty accessing records. But if a public official refuses to comply with an order from Galvin, he has to turn the case over to Coakley for enforcement. Galvin and Coakley often don’t see eye-to-eye on what constitutes a public record. One source says that Galvin referred 13 cases to the attorney general since January 2007, including only three in the past two years — none of which resulted in enforcement action.
Galvin’s legislation would allow him to conduct inquiries to determine whether the Public Records Law has been violated, and if he finds that it has, to issue an order requiring compliance. In addition, he could go into court to require compliance if his order is ignored.
Cabral, the New Bedford representative, has filed public records legislation that would take oversight power away from both the attorney general and the secretary of state. His bill calls for the establishment of a five-member public records commission that would “govern” the division of public records. Although the division would still be part of the secretary of state’s office, the members, who would be compensated for their work, would hire and oversee the supervisor of public records.
“With all due respect to Secretary Galvin, we need independence as far as public records are concerned,” Cabral says.
The current public records law allows the supervisor of public records, at his discretion, to turn cases of non-compliance over to the attorney general for enforcement. Cabral’s legislation would require him to hand it over to the attorney general or to the appropriate district attorney and to do so within five days. And if the attorney general or district attorney fails to achieve compliance within 60 days, the supervisor may himself seek compliance.
Officials in Coakley’s and Galvin’s offices declined comment.
Cabral has also teamed up with Eldridge, the Acton senator, on two other pieces of public records legislation. One would reduce or eliminate fees for public records and the other would require public officials to make records available in electronic form. The legislation also contains a provision that would allow for reasonable attorney’s fees to a party seeking public records in any court proceeding if that party substantially prevails. “It’s important that people who win in court in public records cases get attorney’s fees,” says Eldridge. “This will encourage lawyers to take their cases.”
Four bills that have been filed this year concerning the Open Meetings Law, which requires that most meetings be open to the public. One bill, filed by Senate Minority Leader Bruce Tar of Gloucester would make the Legislature subject to the Open Meetings Law, which exempted itself when it originally passed the statute. It would also require that the hearings of the legislature’s committees and special commissions be videotaped and posted online for at least two years and then archived at the State Library.
“The state government that proclaims itself an agent of transparency should not be insulated from it,” says Tarr. “Legislators talk a lot about the need for transparency; it’s now time we lead by example.”