Paper tiger
By 
INTRO TEXT
A law designed to shine a bright light on the inner workings of state and local government in Massachusetts is instead leaving much of the bureaucracy in shadows, if not total darkness.
A seven-month investigation by CommonWealth revealed that public officials at all levels of government frequently game the Massachusetts Public Records Law, the state’s counterpart to the federal Freedom of Information Act. The law is one of those “small-d” democratic initiatives meant to level the playing field between everyday citizens and the government that serves them. While some agencies routinely comply with the Public Records Law and turn over records, the deck is often stacked against citizens trying to use the law to gain access to government documents.
Huge swaths of state government are exempt or claim exemptions from the Public Records Law. The Legislature, for example, which passed the state’s first public records law in 1851, explicitly exempted itself from the law in 1897. Judicial officials say their branch of government is also exempt, citing the public records regulations, which specifically exempt the judiciary, as well as several court decisions, including one last year by the Supreme Judicial Court. The probation department, which is part of the state’s trial court system, goes so far as to say its budget and salary records are beyond the reach of the law. Even Gov. Deval Patrick, who rode into office promising a transparent administration, claims that case law exempts his office from the Public Records Law, although his aides say he voluntarily complies with most requests.
“Citizens who use the Public Records Law encounter widely varying results,” says Ned Flaherty, a resident of Boston’s South End who has spent more than a decade tracking the twists and turns associated with the controversial Columbus Center proposal over the Massachusetts Turnpike. “Some agencies provide prompt economical access to useful records. At other agencies, public records are virtually impossible to get.”
The stonewalling tactics used by public officials include ignoring records requests, claiming records don’t exist, disingenuously claiming exemptions, redacting so much from the records as to render them useless, and charging so much money to produce the documents that they are unaffordable for most citizens. The Massachusetts Port Authority, for example, wanted to charge CommonWealth $1,641 to provide 300 pages of executive director Thomas Kinton’s appointment calendar, which amounted to $5.41 a page. The cost included a charge of $141 an hour for Kinton himself to spend 4.5 hours — for a total of $635 — to go over the redactions already made by his lawyer.
Citizens who encounter problems accessing public records can appeal to Secretary of State William Galvin’s office, which oversees the Public Records Law. The office issues 200 to 300 rulings on appeals each year, but its effectiveness is hampered by its lack of enforcement powers. And its handling of one case in 2005 has the potential to significantly undermine the Public Records Law. When a citizen said that Boston Mayor Thomas Menino failed to respond to a documents request, Galvin’s office concluded, in Catch-22 fashion, that no action could be taken because there was no response from the mayor to review. The implication is enormous: An official can escape the reach of the Public Records Law by simply ignoring it.
Some government officials say the Public Records Law can be burdensome and is not a top priority, but open-government advocates say officials often fight the release of records to conceal their actions. “They don’t want people watching what they’re doing,” says Kevin McCrea, the lead plaintiff in a successful open government lawsuit against the Boston City Council. “Politicians are afraid of accountability,” he adds. Recalling a line from The Wizard of Oz, McCrea says, “They want citizens to ‘pay no attention to that man behind the curtain’ because otherwise it will mess up their backroom deals.’”
Philosophies aside, there are so many hurdles thrown in front of citizens seeking records that many of them throw in the towel. Even seasoned reporters skilled in pursuing government documents chafe at the law.
“The Public Records Law is weak,” says Walter Robinson, a Pulitzer Prize–winning investigative reporter at the Boston Globe who now teaches investigative journalism at Northeastern University. “It is broken. It is broken in a way that allows public officials to subvert the law.”
Powerful on paper, weak in practice
The exemptions cover many areas. The most frequently invoked is the privacy exemption, which says that things like personnel files, medical records, and marital status are not available to the public. Documents that are part of an ongoing public policy development process, or part of an active law enforcement investigation, are also off limits to public records requests. Many exemptions are also written into other laws, cutting off access to records in such areas as drug addiction treatment, juvenile delinquency, firearms applications, library circulation records, and rape cases.
To gauge how well state and local government agencies are handling public records requests, CommonWealth reviewed hundreds of public records appeals on file at the secretary of state’s office and made 44 public records requests of its own. The research reveals that fierce struggles over records are going on every day behind the scenes, pitting citizens and news organizations against government officials. The Public Records Law, which seems simple to use and very powerful on paper, is actually complicated and weak in practice.
CommonWealth sent out 44 public records requests by signature-confirmation mail. They were simple and straightforward, yet only two officials responded in full accordance with the law. Six officials violated the law by not responding at all, and 21 officials responded only after the law’s 10-day response deadline. Virtually all the officials who responded failed to comply with requirements that they notify requesters of their right to appeal a decision, or that they cite an exemption for redacting or refusing to produce documents. And a number of officials wanted to charge hefty fees for records.
The process of seeking documents was often time-consuming and frustrating, and many times ended in failure. The mayors of Everett (Carlo Demaria Jr.), Malden (Richard Howard), Revere (Thomas Ambrosino), and Springfield (Dominic Sarno) simply ignored requests for copies of their daily appointment calendars. The director of government services in Wellesley (Hans Larsen) responded, but he refused to provide his calendar, claiming a Public Records Law exemption for personal notebooks and other materials prepared by a government employee but not maintained as part of government files.
Chelsea city manager Jay Ash acknowledges he failed to respond to a public records request within 10 days. It took him 22 days. “Do I deserve a demerit?” Ash asks. “No, I don’t think so. I’m faced with prioritizing, and there are a lot of demands on us for budgets, public safety, education, and other things. The request for public records is not the highest priority we face.”
We asked state Treasurer Timothy Cahill for records dealing with the state lottery’s distribution of thousands of Red Sox, Celtics, and Bruins tickets to lottery retailers. In May, one of Cahill’s lawyers, William Egan Jr., said the lottery would provide a cost estimate to fulfill the request within two weeks. As of September, no estimate had been received.
Last April, a lawyer for the Massachusetts State Police, Sean Farrell, said a request for documents dealing with complaints against private investigators was too vague and asked for specifics. We provided specifics, but Farrell was never heard from again.
The state Division of Insurance handed over many internal communications dealing with Progressive Insurance, a big newcomer to the Massachusetts auto insurance market, but none was from Commissioner Nonnie Burnes. When division lawyer Mindy Merow Rubin was queried on how this could be, the division suddenly found three communications from Burnes, as well as a number of other documents that didn’t show up initially.
Before making a public records request of the Boston Police Department, we checked the department’s website for pertinent information. It tells requestors to indicate a reason for wanting the records, a condition that the public records regulations does not allow officials to impose.
Many officials wanted to charge hefty fees to fulfill public records requests. Fees are allowed under the law for photocopying, as well as for staff time spent searching for and redacting documents “based on the hourly rate of the lowest-paid employee capable of performing the task.” But the public records regulations encourage government officials to waive fees “where disclosure would benefit the public interest.” Nevertheless, Boston’s Inspectional Services Department wanted to charge $596.41 for reports dealing with health and safety code violations of outdoor food stands around Fenway Park and inside TD Banknorth Garden — information that the city had pledged to post for free on the department’s own website.
The per-page fees for documents varied widely from agency to agency and, in two instances, were reduced when challenged. The Massachusetts Port Authority, for example, wanted to charge $5.41 a page for executive director Kinton’s appointment calendar. After the fee was questioned, the charge was reduced to $4.09 a page. Similarly, the Office of Consumer Affairs and Business Regulation reduced its fee for the calendar of agency head Daniel Crane’s calendar from $3 a page to $2.08 a page after the charge was questioned.
The MBTA wanted to charge $1.89 a page for the appointment calendar of general manager Daniel Grabauskas, with a staff attorney handling the photocopying chores at a cost of $48 an hour. Attorney General Martha Coakley’s office wanted 88 cents a page for her calendar, while Massachusetts Turnpike Authority executive director Alan LeBovidge priced his calendar at 38 cents a page. Mayor Menino wanted 29 cents a page for his calendar, which included $30.77 an hour for an aide to redact personal items.
Several officials charged nothing for their calendars, including the secretary of transportation (Bernard Cohen), the state auditor (Joseph DeNucci), and the Brookline town administrator (Richard Kelliher).
At the mercy of the A.G.
Public record appeals are the purview of Alan Cote, who works as the supervisor of public records in the secretary of state’s office. A review of the office’s case files indicates that he handles appeals in an evenhanded manner, yet he makes no secret of the fact he favors openness and transparency at all levels and in all branches of government. “Government should be covered from top to bottom” by the Public Records Law, he says.
Cote can order government officials to release records, but when that doesn’t work, his only recourse is to turn the case over to the attorney general’s office, which can order officials to comply or, failing that, haul the agency into court. If Cote denies someone’s bid to obtain records, the citizen can appeal his decision in the courts.
In the courts and with the attorney general, Cote’s record is mixed. Several of his rulings have been overturned in the courts, and former Attorney General Thomas Reilly and his successor, Martha Coakley, have frequently disagreed with his decisions, sometimes to the point of getting contentious. Of 52 public records appeals Cote referred to Reilly dating back to January 1, 2003, the attorney general ordered the full release of records in 10 cases and the partial release in three cases, reversed Cote’s rulings in 10 cases, and failed to respond to 14 cases referred by Cote. Other actions by Reilly include declining to intercede because of pending litigation or closing cases because the parties reached their own independent resolution.
Delays of a year or two for Reilly to issue a ruling were common. In one case, a woman seeking records from the State Police waited two years for Reilly to act, but then died, causing him to close the case without issuing a ruling.
Cote has referred 10 cases to Coakley since she took office in January 2007. She also took on two cases that Reilly left behind. Coakley ordered the release of records in six cases and reversed Cote’s rulings in three cases. One case was resolved by the parties on their own. Coakley has yet to respond to two referrals from Cote, both submitted in May 2007.
Several times over the years Cote and the attorney general have engaged in verbal fisticuffs. One appeal Cote referred to Reilly’s office for action in 2003 was returned with the suggestion he had not done a thorough job in reviewing the case. Cote, in a letter obtained through a public records request, called the attorney general’s action insulting and said the decision “increases the frustration of this office and undermines the authority and weight of our administrative rulings.”
In one decision that Coakley reversed this year, Cote accused the attorney general of exceeding her authority. Coakley’s general counsel, James McKinley, defended the decision and delivered a lawyerly snub to Cote: “As you know,” McKinley wrote, “the Supreme Judicial Court affords only a ‘minimal’ degree of deference to the supervisor’s interpretation of the Public Records Law.”
Cote’s boss, Secretary Galvin, has backed legislation several times to give his office the legal authority to enforce the Public Records Law, but it has gone nowhere on Beacon Hill. A spokeswoman for Coakley says the attorney general doesn’t support giving Cote enforcement power. “The AG feels the statute should remain as it is,” e-mailed Emily LaGrassa.
The governor’s office also presents difficulties for Cote. Both governors Mitt Romney and Paul Cellucci claimed that the Public Records Law did not apply to them as a result of a 1997 court decision — Lambert v. the Judicial Nominating Council. Gov. Patrick makes the same claim.
Barney Keller, communications director for the Massachusetts Republican Party, says Patrick deserves more criticism than Romney or Cellucci. “The difference is that Patrick ran for office on a platform of having a transparent administration,” he says. “We sometimes get the records we want from the governor, but at other times, his lawyers make it as difficult as possible.”
At issue in Lambert was whether a personal questionnaire completed by an applicant for judicial appointment was a public record. The court ruled that it was not, since “the governor is not explicitly included” in the definition of who is covered by the Public Records Law. So whenever Patrick receives a public records request, his legal staff, citing Lambert, responds that the governor is not legally required to provide the documents. His office says, though, that he voluntarily provides records in most instances. The governor’s office declined repeated requests for an interview and did not respond to questions submitted in writing.
Kimberly Keyes, a media attorney at the Boston law firm of Prince, Lobel, Glovsky & Tye, says the governor is interpreting Lambert too broadly. She says the court did not rule that the governor’s office is totally immune from the Public Records Law, only that the personal questionnaires completed by applicants for judicial appointment and submitted to the governor through the Judicial Nominating Council are not public records. “Lambert was a narrow ruling, not a broad one,” Keyes says.
When he receives appeals of records requests denied by the governor, Cote walks softly. He says he likes to handle appeals against the governor informally so as to avoid locking horns over the Lambert decision.
“Cote has to choose his battles,” says Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association. “He tries to do the best with what he has, but he is only as strong as the backing he gets from Martha Coakley.”
Last year, Cote convinced the governor’s office to hand over a series of department-produced budget-savings proposals to Barbara Anderson, executive director of Citizens for Limited Taxation. Anderson thought the suggestions might come in handy if there was an attempt during the budget process to raise taxes.
Patrick had initially refused Anderson’s public records request, citing the Lambert decision as well as claiming that the budget records were exempt because they were part of ongoing policy deliberations.
Anderson says she was surprised that the governor would say he was exempt from the Public Records Law and that the Legislature had exempted itself. “What’s more public than the Legislature?” she asks. “It’s appalling. Once you wrap your mind around that, it’s not surprising the governor would try the same thing. But I’m not shocked by anything anymore.”
License to stonewall
Cote’s reluctance to rock the boat surfaced in 2005 in a case involving the Gaiety Theatre on the lower end of Washington Street in Boston. Shirley Kressel, a citizen activist and urban designer, says she filed a public records request with Menino, seeking all documents related to the demolition of the Gaiety. Built in 1908, the theater was an historic structure that many in town wanted to save, but the city approved its demolition to make way for a 30-story luxury apartment building.
Kressel says Menino did not respond to her records request, so she appealed to Cote, who decided to do nothing. He claims his hands were tied by a 2002 case in which the town of Easton refused to turn over minutes of executive sessions of the town selectmen to a citizen, claiming they were exempt from the Public Records Law. Cote ordered the town to hand over the minutes to him so he could examine them in private to determine whether or not they were, in fact, exempt. The town refused.
Cote referred the case to Reilly’s office, which said that it would not take action against Easton until Cote made a final determination, as required by the Public Records Law, that the Easton minutes were a public record that must be released. Cote refused to do that, even though the Public Records Law presumes records are public unless the holder of the records proves otherwise. He felt that the attorney general’s interpretation of the law — that he first had to make a final determination before the attorney general could get involved — was incorrect. “I refused to make such an order without being able to see the documents,” he said in an e-mail.
He adopted the same reasoning in the Menino/Kressel case, declining to refer the case to the attorney general. Cote never even contacted Menino about the Gaiety records request. The result: a bureaucratic stalemate that opened a gaping hole in the Massachusetts Public Records Law.
A stunned Kressel said it best in an angry letter she fired off to Cote: “Your office appears to take the position that any public official can simply evade the law by ignoring it.” Cote did not budge.
Dot Joyce, the mayor’s spokesperson, says she couldn’t confirm that the mayor received Kressel’s records request. She says the mayor responds to many records requests. “We’re very open. There’s not much we have denied,” she says.
The luxury apartment building that was supposed to rise from the rubble of the Gaiety never went up. What’s there now is barren land surrounded by chain-link fence.
sunshine state shines the light
The availability of public records in Massachusetts is similar to what exists in other states across the country, according to Charles Davis, the executive director of the National Freedom of Information Coalition at the University of Missouri. He says all 50 states have public records laws, and most place legislative and judicial records off limits. Governors in many states also claim exemptions based on case law, Davis says.
Davis points to Florida as having the “gold standard” for state public records laws, noting that the exemptions in the Florida law are very narrowly defined and easily understood.
The Florida public records law was strengthened even more when Gov. Charlie Crist, a Republican, came into office in 2007. He established the Office of Open Government, which he charged with assuring full compliance with Florida’s public records law and with providing training to all executive agencies on the need for transparency and accountability.
Crist also appointed a special counsel on open government. Pat Gleason, the special counsel, points out that Florida not only has a public records law, but its constitution guarantees the right of access to public records. Gleason also notes that if a policy is still being hammered out in Florida, any related documents are public records, which is contrary to what the Public Records Law in Massachusetts says. When records disputes arise, Florida’s attorney general runs a mediation program, according to Gleason.
Crist has also established a Commission on Open Government to make recommendations to him on how Florida’s public records law could be improved. Commission staff director JoAnne Carrin says the commission will shortly be submitting recommendations that include making much more of the state’s financial data available on the state’s website, as well as making available more documents concerning complaints filed against professionals licensed by the state.
Davis says more states need to follow Florida’s lead. “Public officials need to put on their big-boy pants and act like adults and do the right thing by making documents easily available to the public they are supposed to serve,” he says.
Back in Massachusetts, there is little movement. Northeastern University’s School of Journalism is launching a center to increase access to public records. Former attorney general Scott Harshbarger and Kimberly Mottley, attorneys at Proskauer Ross LLP, are working with the American Civil Liberties Union and Citizens for Juvenile Justice, which have been stymied in their efforts to obtain aggregate statistical information from the state’s probation department. The two attorneys say they were surprised to learn the entire judicial branch claims an exemption, for all purposes, from the Public Records Law. “It just seems wrong,” says Mottley, who is exploring alternative legal options.
Robinson, the Boston Globe investigative reporter turned Northeastern professor, says the Public Records Law needs teeth. “That won’t happen until the press, and some chunk of the public they serve, become concerned enough to speak up, and loudly. This is not special interest legislation we’re talking about,” he says. “This is a pretty simple toolkit that makes it possible for all of us to hold government institutions accountable.”Colman Herman is a freelance writer living in Dorchester.