Our Government Transparency Resolutions for 2017

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State House

State House

Although transparency was the expression of choice on Beacon Hill in 2016, the year fell short of what could have been a transformative period of government openness.

Long overdue public records law reform was the most dramatic action taken by the Legislature in this vein, but compromise ultimately weakened what otherwise could have been very toothy legislation to advance the public’s interest. Nevertheless, progress was made. Pioneer Institute has long supported many elements of the enacted legislation, including subjecting the MBTA Retirement Board to public records law, making its operations transparent, establishing a public records officer for every agency, promoting electronic records in response to requests, imposing stronger penalties on delinquent agencies, promoting electronic disclosure, and reducing costs to obtain public records.

Historically, Massachusetts has ranked at or near rock bottom nationally in terms of open government. We look forward to reviewing the next rankings from the Center for Public Integrity and the Reporters Committee for the Freedom of the Press to see if the new law improves our state’s position relative to the rest of the country. However, there is still much work to be done.

As we do each January, Pioneer shares the resolutions it hopes state leaders will adopt to bring government actions into better focus and invigorate our democracy with heightened public engagement.

GovSealEliminate Governor’s Office “Executive Order” Privilege

Few have likely heard of the case, Lambert v. Executive Director of the Judicial Nominating Council, but this 1997 Massachusetts Supreme Judicial Court ruling has been interpreted by each of our state’s governors over the last two decades to empower their respective offices to fulfill public records requests “at the office’s discretion.” As with the Legislature’s broad exemption, the new public records law did not lift the governor’s blanket exemption but asked the special legislative commission to study exemptions enjoyed by both the governor and the judicial branch. In September 2016, Pioneer sent a letter to Governor Baker asking him to take bold action on this front.


internet connection concept, 3d generated imagePost All Legislators’, Candidates’, and Policymakers’ Statements of Financial Interests Online
Massachusetts is among a minority of states that do not post Statements of Financial Interests (SFIs) online.  Under the current process, all requests for SFIs go through the State Ethics Commission, which then provides the name of the requester to the public figure being scrutinized, which discourages public oversight.  The new public records law fails to address this and only allows SFI requests and the State Ethics Commission’s transmittal of them to the requester to be done through email, provided the requester provides identification and his or her affiliation – a major shortcoming.  SFIs should be treated the same as any other public records.
houseInclude the State Legislature under the Definition of Public Body

Under Massachusetts law, the state Legislature is not considered a “public body” in the traditional sense, and therefore enjoys exemptions from open meeting and public records laws. Pioneer Institute believes this law is unconstitutional. The state constitution says the Legislature should be accountable to citizens “at all times.”

The laws that apply to municipalities and the rest of state government should apply to all of state government.  The new law failed to address this exemption and only established a special legislative commission to look into the issue further.  We look forward to reading the commission’s report, to be submitted to the House and Senate Clerks’ Offices by December 30, 2017.

In February 2016, we asked Attorney General Maura Healey to take action to promote this initiative by issuing an advisory opinion on the constitutionality of the exemption. Well, that didn’t happen.

commuterrail-300x169Commuter Rail Late Fine Reporting Portal

Accountability provides a powerful incentive to improve performance. Accountability and transparency are indispensable ingredients for good government. We urge the MBTA to develop a real-time transparency tool that provides public access to daily on-time performance records of the commuter rail system – by individual line and individual scheduled trip – including fines charged for each commuter rail train that arrives at its terminus more than five minutes late. This would allow commuters to see whether their late train was reported as having been late. The tool should provide details by train number and date, including the balance of all fines not yet collected and the amount of fines forgiven.

CBOCreate the State Equivalent of the Congressional Budget OfficeWe reaffirm our proposal to advance true legislative transparency by creating a state version of the Congressional Budget Office. This independent office would conduct cost-benefit analyses for bills that would either raise revenue or involve spending.  Legislation with an estimated financial impact of more than $1 million would be subject to the analysis. In 2015, State Senator Jamie Eldridge introduced legislation that contained a feature that is similar to our proposal.

Establishing a Massachusetts office run by the Inspector General to independently assess bills with an expected budgetary impact in excess of $1 million would improve decision-making and accountability, and promote both efficiency and public trust.  This office would be required to publish each analysis, including the assumptions behind it, on its website on a timely basis.  To ensure independence, the Inspector General should be limited to a single six-year term without the possibility of reappointment.

e-zpass-tollPay-by-Plate Collections Transparency Tool

The toll-paying public should know if their tolls are subsidizing other drivers who are using the Massachusetts Turnpike, the Tobin Bridge, and the Harbor tunnels without a transponder and not paying their bills under the Pay-by-Plate (PBP) system. MassDOT should create a real-time tool that shows toll billing captured through transponders, tolls to be billed through PBP, and tolls unbilled because of errors with the PBP. The tool should also show PBP toll collections, the amount not yet collected, and the amount of write-offs based on state of vehicle registration.

auditEnsure Objective Audits of State Legislature’s Budget

As has been the practice for decades, the state Legislature hires its own firm to perform a partial review of its books and records, giving the public a very limited view of its operations. An audit of the Legislature should be conducted by the State Auditor and the results made public.

legal-feesImpose an Effective Public Record Appeal System that Encourages Engagement

The 2016 public records law states that requesters of public records are to be reimbursed for “reasonable” legal fees.  Current law does not provide for any such reimbursement, making this change a large a step forward.

The downside to this new provision, however, is that the presiding judge has discretion in awarding such fees.  While the law contains a presumption in favor of such awards, the judge can waive fees if the agency or municipality can establish that the Supervisor of Public Records previously found that it did not violate public records law, it relied on a prior court’s opinion or on an attorney general’s published opinion on “substantially similar facts,” the determination of which is subjective.

Additionally, a judge can waive fees if the agency can establish that the request was made to intimidate or was not “in the public interest” and was instead made for a commercial purpose.  Because of the subjectivity involved in evaluating whether to waive fees, a potential plaintiff may forego the court process altogether, even though he or she believes his or her case is strong.  An individual lacking deep pockets or an organization without in-house counsel would be unlikely to assume such a risk, making the deterrent for agency non-compliance less effective.

SBASchool Building Authority Portal

School districts should understand where they stand with respect to other districts in competition for limited funds to build or improve facilities. The School Building Authority (SBA) can make this easy by building a public transparency tool that tracks each grant request and reports the final scoring points earned on each proposal and the amount of money ultimately released to the district, if any.

CthruInclude Invoices and Contracts as Part of Massachusetts CTHRU Open Records Platform

When Massachusetts launched its new records platform last year, the state improved government spending transparency. The lower maintenance costs and the user-friendliness of the site made it a meaningful upgrade to the pre-existing Open Checkbook website. The site vastly improves the public’s ability to understand state spending by providing comprehensive details about the budget to anyone with an internet connection. Massachusetts is ranked highly nationwide in terms of spending transparency.

Here’s a way for us to lead the nation: give the public access to what vendors are charging us and exactly what we’re being charged for. Having PDFs of invoices and contracts included in the online database would provide clarity and reduce the need for public records requests.

exemptEliminate the “Deliberative Process” Exemption to the Public Records Law

One loophole, often abused because of its vagueness, is the “deliberative process” exemption, which prohibits citizens from gaining access to any records related to a policy while it is being developed.  Why are citizens not entitled to know what their elected and appointed officials are thinking as they formulate policy?  We believe they are – and that anything less provides only the illusion of transparency.  The new law did not eliminate this problematic exemption.

gasRequire Disclosure of Per-Gallon State and Federal Gasoline Taxes on All Retail Gas Pumps in the State

Last week, the average price for a gallon of gasoline in Massachusetts was $2.35. Included in that price are taxes that go to the state and the federal government amounting to approximately $.45 or 19 percent of the total cost. Citizens are often unaware of how much gas tax they are paying. Requiring gas stations to post stickers disclosing federal and state taxes would improve transparency.

To learn more about our online transparency tools, visit MBTAAnalysis, MassOpenBooks, MassAnalysis, and MassReportCards. Be on the lookout for our next transparency tool to be released – MassPensions.

Contact Mary Connaughton, Pioneer’s Director of Government Transparency, with any questions: mary@pioneerinstitute.org.

 

Pioneer Institute is an independent, non-partisan, privately funded research organization that seeks to improve the quality of life in Massachusetts through civic discourse and intellectually rigorous, data-driven public policy solutions based on free market principles, individual liberty and responsibility, and the ideal of effective, limited and accountable government.
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