Push on for changes in Public Records Law

Some call for Legislature, judiciary to be covered

FOR THE FIRST TIME in a long time, momentum seems to be building for making changes in the state’s Swiss-cheese Public Records Law.

Attorney General Maura Healey, a newcomer on Beacon Hill, says she intends to break with the practice of her predecessors and work closely with Secretary of State William Galvin to enforce the law. She also thinks the law’s reach should be extended to the Legislature and the judiciary. Even the governor’s office contends it is exempt from the law.

“Candidly, whenever you see an entire public body exempt from something like a Public Records Law, I have concerns. I have questions. So this is something I want to look at,” she told State House News last month.

Galvin himself is also talking about putting a question on the 2016 ballot to revamp the law. Several news outlets, including the Boston Globe, the Boston Herald, and the GateHouse Media newspapers recently joined together in what was described as a “coordinated condemnation of Galvin’s rulings on the state’s Public Records Law.” Their editorials severely castigated Galvin for interpreting regulations governing the privacy of criminal records too broadly in a matter that makes the police the censors of arrest records.

The pressure for change is growing, but the likelihood of anything actually happening is uncertain. CommonWealth has reported extensively on weaknesses in the state’s Public Records Law as far back as a cover story in the fall of 2008, yet lawmakers have been reluctant to take any action.

If anything, the problems have grown worse, as officials have come to realize that they can ignore Galvin’s rulings because he has no power to enforce them. The attorney general handles enforcement, but Galvin and former attorneys general Martha Coakley and Thomas Reilly couldn’t agree on how the law should be enforced, so Galvin stopped forwarding cases to them. That left records holders free to withhold records without the proper claiming of exemptions or to redact so much information from the records as to render them useless.

Opponents of changing the law rarely say anything publicly, but privately they fret that opening their files to public inspection could wreak havoc. Lawmakers, for example, say subjecting them to the law would discourage open debate. Judges worry that their personal files could be subject to the law.
Yet other states have found ways to provide greater access for the public without the sky falling.
Florida’s public records law, for example, is the gold standard nationally. It has teeth and the exemptions to the law are very narrowly defined and easily understood. Massachusetts, by contrast, has 20 exemptions specified in the Public Records Law itself and about 50 others scattered throughout other statutes, many of which are confusing.

Pat Gleason, special counsel for open government for the Florida attorney general, points out that her state not only has a public records law that covers state and municipal agencies and the governor, but a constitution that guarantees the right of access to public records for all branches of government. A separate Florida law, for example, says it is the policy of the Legislature that anyone has the right to inspect legislative records in connection with official business. Similar language exists for the judiciary through rules it has established.

Gleason also notes that if a policy is still being hammered out in Florida, any related documents are public records, which is not the case in Massachusetts.   And when records disputes with state agencies and municipalities arise, Florida’s attorney general runs a mediation program that, according to Gleason, works very well, contrary to what goes on with the appeal process in Massachusetts.

If Floridians need to sue to get access to records, they are awarded attorneys’ fees if they prevail. Successful plaintiffs who sue in Massachusetts in order to get public records cannot recover attorneys’ fees. As a result, only bigger media companies, such as the Globe, seek judicial relief.

On Beacon Hill, legislation has been introduced yet again this year to amend the Public Records Law by providing greater electronic access to public records, lowering the prices for records, and allowing for the collection of attorneys’ fees by plaintiffs who successfully sue for public records access.

Meet the Author
The new legislation is very similar to legislation that was introduced in the last session—with one glaring exception. A proposal to have a study commission evaluate whether the Legislature should be covered by the law disappeared.

The bill’s sponsor, Rep. Peter Kocot, a Democrat from Northampton, says the omission was not made to make the legislation more palatable to lawmakers. “We are planning to incorporate coverage of the Legislature as we go through revisions by specifying some exemptions that will address the concerns of my colleagues,” he says.