Meet the new public records law – same as the old one

The new law is as broken as the old one was

OVER THREE YEARS have gone by since the Commonwealth’s much-heralded overhaul of the Public Records Law went into effect in 2017. Regrettably, the old vexing problems nonetheless still persist. That’s the conclusion based on a review of the 2019 rulings issued by the supervisor of public records in Secretary of State William Galvin’s office, as well as numerous other documents.

The Public Records Law — the state’s counterpart to the federal Freedom of Information Act— is supposed to help citizens pull back the curtain on the inner workings of state and local government. The underlying core notion is that democracy is at its best when things are done out in the open for everyone to see. When it works like it’s supposed to, the Public Records Law can help weed out waste, malfeasance, and incompetence. Public records can help citizens make informed judgments about how money is being spent, how contracts are being let, how people are being hired, and who’s saying what to whom.

The updated law was intended to make it easier to access public records and, on paper, it looks to be a powerful tool for holding public officials accountable by leveling the playing field between them and the constituents they are sworn to serve. But the reality is that this “small d” democratic initiative is broken in many of the same ways as its predecessor, leaving the deck still stacked against citizens seeking information. At a time when public officials are proclaiming the value of transparency and openness, they are simultaneously declaring that more and more of the government documents under their control are off limits to public scrutiny.

As a result, the volume of public records appeals filed with the supervisor of public records has gone up dramatically. In 2016, the last year that the old Public Records Law was in effect, 1,232 appeals were filed.  By 2019, under the new law, that number had astonishingly doubled to 2,494.

NONRESPONSES ABOUND

A major criticism of the old Public Records Law was that it was ineffective in dealing with officials who repeatedly subverted the law by simply ignoring public records requests — the ultimate in information lockdown.

The new law attempted to curb this problem by giving officials more time to respond — from 10 calendar days under the old law to 10 business days under the new law. And if the request is burdensome, state agencies and municipalities can take five and 15 more business days, respectively, to produce the responsive records.  And if these additional days are still not sufficient, officials can petition the supervisor of public records for even more time.

Despite the generous expansion of time to respond to public records requests under the new law, the issue of nonresponses is worse now than ever before — much worse — because officials simply ignore the longer deadline.  A number of major government entities, in fact, continue to be serial violators of the Public Records Law by not responding to public records requests.

Two of those agencies —the Massachusetts State Police and the Boston Police Department—take extraordinary measures to withhold documents in their entirety from public view. This precipitates a voluminous amount of public records appeals being filed against the two agencies, the majority of which they lose.

  • The State Police lost 178 of the 181 public records appeals filed against it in 2019, 124 ,or 68 percent, of them pertaining to the department’s failure to respond to the requests.
  • The Boston Police Department lost 103 of the 106 appeals filed against it, 79, or 75 percent, involving its failure to respond.

State Police spokesman David Procopio defends his agency by pointing to the number of requests it receives.  “In 2019, State Police answered 5,535 records requests, the majority of them from media, attorneys, and private citizens,” he says. “The overwhelming majority of responses (approximately 5,350) were not appealed.”

Procopio says the agency is currently in the process of hiring more lawyers to respond to public records requests.

Boston Police Department spokesman Detective Sergeant John Boyle says his department needs more people to work on public records requests.  “I know that Commissioner [William] Gross plans on devoting more personnel to public records, and hopes to get that number of nonresponse down,” he says.

Two of the many other problematic agencies are the Department of Transportation and the Massachusetts Bay Transportation Authority.

  • MassDOT lost 87 of the 88 appeals filed against it, 63, or 72 percent, entailing the department’s failure to respond.
  • The MBTA lost 47 of the 51 appeals filed against it, 21, or 41 percent, associated with the T’s failure to respond.

MassDOT spokeswoman Jacquelyn Goddard, like her counterpart at the State Police, points out that her agency also gets a lot of public records requests.  “In 2019, DOT received 1,912 public records requests and made every effort to provide responsive public records requests as quickly as possible,” she says.  “Some records requests required retrieval of paper records or compilations of computerized data which are not quickly accessible.”

MBTA spokesman Joe Pesatoro declined to comment on his agency’s handling of public records requests.

Many state agencies are also ignoring with impunity public records requests seeking information regarding the COVID-19 pandemic.

For example, a Boston Globe reporter filed five COVID-related public records requests with the Massachusetts Emergency Management Agency.  The requests were submitted to the agency’s general counsel and records access officer, Ann McCarthy, who failed to respond to every single one of the five requests.  This necessitated the filing of appeals with Galvin’s supervisor of public records, Rebecca Murray.

Despite Murray telling agencies time and time again that they cannot ignore public records requests, the problem nonetheless continues with unabated impunity.

Galvin declined repeated requests for an interview, did not respond to questions submitted in writing, and refused to make Murray available for an interview.

FEES

Another significant complaint about the old Public Records Law was that it did nothing to prevent agencies from purposely charging outrageous fees as a means of discouraging records requests and thus preventing the records from seeing the light of day.

The new law attempted to address this by not allowing officials to charge for the time they spend redacting records unless the supervisor of public records approves a petition to charge for the redactions, or if a separate law — of which there are over 60 covering a wide-ranging of subjects — requires redaction.  Examples of the latter statutes involve such matters as Criminal Offender Record Information (CORI), sexual assault, domestic violence, Native American burial sites, library circulation, and hazardous waste facilities.

But high fees for public records still persist.  When, for example, I asked the Office of Consumer Affairs and Business Regulation for copies of disciplinary actions taken against massage therapists licensed by the agency for sexual misconduct with their clients for a five-year period, officials demanded $2,000 before it would turn over any records.

EXEMPTIONS

The new Public Records Law did not change the exemptions that are available for redacting records or withholding them in their entirety. There are 21 specified in the law along with over 60 more exemptions scattered throughout other Massachusetts general laws.

 Two of the most invoked exemptions in the updated Public Records Law are, as with the old law, the privacy exemption and the deliberative process exemption — exemptions that officials under the new law still often try to misuse to shield documents from public scrutiny.  Two examples involving the privacy exemption under the new law involve the MBTA.

When I asked the T for a copy of General Manager Steven Poftak’s contract, assistant general counsel Julie Ciollo refused to provide it. “Please be advised that your request seeks information that is exempt from disclosure,” she wrote. She claimed the privacy exemption as the basis for withholding the records. Ciollo said the same thing in response to a request for a copy of a settlement agreement the T had executed with a human resource chief who was given the axe.

Poftak’s contract and the human resources settlement were eventually pried loose, but only after appeals were filed with the supervisor of public records, who ruled that these types of documents are public records.

REFERRAL TO THE ATTORNEY GENERAL

Still another big objection regarding the old Public Records Law was that the supervisor of public records lacked the legal authority to enforce her own orders, making recalcitrant public officials even more prone to cavalierly ignore them. But nothing has changed under the new law.

When an agency or municipality does not comply with the supervisor’s order, she has to refer the matter over to Attorney General Maura Healey for an enforcement action. But the process is rocky, despite an avowal by Healey in 2015 to mend the longstanding rift between the two offices to give the public better access to government records

Since Healey assumed office, the supervisor of public records has referred 28 cases to her for enforcement; two of those cases await a ruling.  Of the 26 cases in which Healey has issued rulings, she has reversed the supervisor’s orders 10 times, or over a third of the time.

In an appeal in 2016, the supervisor of public records at the time, Shawn Williams, ordered the MBTA to provide a management consultant’s report to the Boston Herald that dealt with employee attendance and leaves of absenceWhen T officials refused to comply with Williams’s order, he turned the case over to Healey for enforcement. But Healey saw it differently than Williams — she ruled that the T could withhold the report in its entirety based on its claim of attorney-client privilege.

In 2014, the Baker campaign promised to make state government more transparent and reexamine the practices regarding public records. In 2017, however, the Boston Globe filed a public record request with Baker seeking records of calls from constituents for a 12-month period. In doing so, the Globe made it explicitly clear that it was not interested in accessing any personal information about the callers themselves.

Nonetheless, Baker refused to provide the constituent records, saying, just as his predecessors have said for years, that based on case law, he is not covered by the Public Records Law. The Globe appealed to Murray, the current supervisor of public records.

Murray ordered Baker to produce the records of the calls or explain how the records in question are not subject to public scrutiny. When Baker refused to comply with her order, she forwarded the case over to Healey, once again to no avail. Healey sided with Baker and said he did not have to provide the records of the constituent calls.

In 2018, I submitted a public records request to the Boston Water and Sewer Commission seeking copies of files containing complaints made against commission employees for racial and gender discrimination for the period 2010 to 2018.

The sewer commission refused to provide the complete files and instead responded after an appeal was filed with sketchy summary information for 20 complaints, claiming the privacy exemption, among other things, as a basis for withholding the records.

Despite the fact that Murray issued five rulings ordering the sewer commission to produce the responsive records, the agency refused to comply. When Murray asked Healey to enforce it, she refused.  Healey was concerned that even with the redaction of names and addresses, people might be able to figure out the identity of the complainants, thus violating their privacy.

Healey’s office said in each of the cases it was the attorney general’s call. “While our office gives substantial weight to the supervisor’s interpretation of public record matters, we have the ultimate responsibility for determining how to enforce or otherwise resolve a referral from the supervisor,” Healey spokeswoman Jillian Fennimore says.

It has reached the point that Murray appears to be gun-shy about referring cases to Healey for an enforcement action. For example, last November, I filed a public records request with the State Police seeking copies of drafts of a settlement agreement it had executed with one of its troopers. The State Police refused to provide the drafts, even though Murray ordered the agency four times to produce them, in redacted form if necessary. In March, Murray was asked to turn the case over to Healey for enforcement.  She has yet to do it.

Robert Ambroggi, a public records lawyer, says the referral process is flawed. “I believe that the same entity that investigates public records complaints should also be the entity that enforces its own findings,” he says. “That would create a more uniform process for interpreting, applying, and enforcing the law.

THE EXEMPTED BRANCHES

 A huge criticism of the old Public Records Law was that it did not cover three huge swaths of state government – the governor, Legislature, and the judiciary. The governor and the judiciary are exempted based on case law. The Legislature, which passed the state’s first Public Records Law in 1851, explicitly exempted itself from the law in 1897.

When the updated law went into effect, the Legislature put off making the three entities subject to the law and instead established a special commission to study the issue.

Although the commission was supposed to issue its report by the end of 2017, it never met and so the deadline was extended.  But even with the revised deadline, the commission, which met five times in 2018 with spotty attendance by a number of its members, failed to reach a consensus and never issued a report.

Opponents of changing the law to cover the Legislature and the judiciary 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.

RECOMMENDATIONS

The adages are many — information is the currency of democracy, sunlight is the best disinfectant, democracy depends on an informed citizenry. But in Massachusetts, these beliefs often still get shunted aside when it comes to accessing public records even under the new Public Records Law.

Here’s some of the things that would go a long way to making the public records law more effective.

  • The supervisor of public records should stop tolerating the chronic failure of law enforcement and other agencies that ignore public records requests.
  • More agencies and municipalities should waive the fees for public records in the interest of transparency and accountability.
  • The Legislature should turn the power of enforcement over to the supervisor of public records.
  • The supervisor of public records is empowered to conduct “in camera” reviews of unredacted records to assess the veracity of officials who claim the records should be redacted. The supervisor should do more of these reviews.
  • Agencies and municipalities should learn how to properly claim exemptions, and recognize that most of the time the claiming of exemptions is discretionary.
  • Baker should stop hiding behind case law in denying access to public records, and the Legislature and the judiciary should subject themselves to the public records law, as other states do.

Colman M. Herman is a freelance writer in Boston.