State’s Public Records Law in need of repair

 The state's Public Records Law is in desperate need of repair, according to a group of panelists who discussed the law today at a State House forum sponsored by CommonWealth Magazine, a division of the nonpartisan think tank MassINC.

The Public Records Law, the state counterpart to the federal Freedom of Information Act, was intended to give citizens access to the inner workings of state and local government by allowing them to obtain official records of all types. But an article in the fall issue of CommonWealth Magazine reported that the law isn't working. A series of court decisions have declared the governor's office and the judiciary off-limits, the Legislature has specifically exempted itself from the law, and enforcement is marred by infighting between state agencies.

"The law is weak, too weak. It needs to be strengthened," said Walter Robinson, a former investigative reporter at the Boston Globe who now teaches journalism at Northeastern University and runs the university's First Amendment Center. "It is more critical now than ever so all of us can have access to the records of government."

Rep. Antonio Cabral of New Bedford, another panelist, has filed legislation that would make a number of changes in the law, including giving Secretary of State William Galvin broader enforcement powers. Currently, Galvin's office can rule on whether a document is a public record or not, but it can not force a government agency to release the document. That job is left to the attorney general, who has often been at odds with Galvin's office on enforcement issues.

Alan Cote, Galvin's supervisor of public records, acknowledged his relationship with former Attorney General Thomas F. Reilly was not as good as it could be. "We would send appeals to their office for enforcement," he said. "It would take many, many months for them to look at them. Ulimately, they would decide not to enforce it or outright disagree with my determination that it was public. So we eventually stopped sending items up there for enforcement."

Cote suggested his relationship with Attorney General Martha Coakley was still developing. He said he had referred only a handful of cases to her office and said he couldn't recall how they were resolved. But the CommonWealth article reported that little had changed. It said Coakley had reversed Cote's decisions on at least three occasions and that her general counsel had delivered a lawyerly snub to Cote in one testy exchange. According to the article, a letter to Cote from general counsel James McKinley said: "As you know, the Supreme Judicial Court affords only a 'minimal' degree of deference to the supervisor's interpretation of the Public Records Law."

Cote said the Public Records Law puts Coakley, who represents state agencies in most court disputes, in an awkward position. "You're really asking the attorney general to call her client, who she just represented last week or last month, and say, 'We're going to take you to court and we're going to sue you to give this record up.' It really is a strange setup that we have. The way to solve it is to give my office more power."

Galvin has filed many bills in the past to give his office more power, but none of them have passed in the Legislature. Coakley, who declined an invitation to the panel discussion, in the past has said she opposes changing the law to give Galvin more enforcement authority.

Cabral was optimistic about passage of his bill this session, but offered no guarantees. "Obviously, there are some very influential forces," he said.

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Bruce Mohl

Editor, CommonWealth

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

Robinson said the public seems to be at a disadvantage. "The public doesn't seem to have had the clout with the Legislature in the past to offset the clout of those who do not want the law broadened or strengthened," he said.

Jonathan Albano, a partner at Bingham McCutchen, said the law needs to be changed. He said passage of Cabral's bill would be a "tremendously positive" development, but he said if lawmakers want the governor's office to be covered by the law they need to amend the law to specifically say the governor's office is covered. Cabral's bill does not expand the reach of the law to include the governor or the judiciary. The governor's legal counsel, Ben Clements, declined to attend the panel discussion.  

Albano also suggested the mindset of public officials about releasing records needs to change. He noted President Barack Obama recently said that people have forgotten that even if a record is exempted from release under a public records law that doesn't mean the record is classified and cannot be released. "All it means is the custodian is not required to produce that document to the public," he said. "It doesn't mean they can't do it."