Our Government Transparency Resolutions for 2016

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While it’s possible that 2016 will see an historic surge in policies and laws that promote transparency in Massachusetts, the odds are we won’t see a quantum leap.

But as we dig deeper into the draft of the public records reform bill released by the Senate yesterday, we are encouraged that, after decades of inaction, Beacon Hill is more tuned in to the public’s demand for transparency – but there is much more work to do.

With Massachusetts ranking at or near rock bottom nationally in terms of open government, many are eager to shed the dark veils that mar our governmental processes so the state can assume its rightful place as a leader in good government.

As we have traditionally done each January, Pioneer Institute is sharing resolutions that would bring government actions into closer view and invigorate our democracy with heightened public engagement. To learn more about our online transparency tools, visit MassOpenBooks, MassAnalysis, and MassReportCards. Contact Mary Connaughton, Pioneer’s Director of Government Transparency, with any questions: mary@pioneerinstitute.org.

NOTE: many resolutions below are similar to those of the prior year. Sadly, we didn’t see much movement on open government on Beacon Hill in 2015.

Eliminate 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 upheld the Governor’s right to not comply with an executive order. As such, all public records requests to the Governor’s Office are fulfilled “at the office’s discretion.”

We applaud Governor Baker’s initial step to ensure transparency by establishing improved public records policies for the agencies that report to him. RejectingLambert as a means to deny public records requests of the Governor’s Office itself would be a powerful second step with strong repercussions throughout the branches of government.

Include the State Legislature under the Definition of Public Body

Under Massachusetts law, the state Legislature is not considered a “public body” in a traditional sense, and therefore enjoys exemptions from open meeting and public records laws. We believe the laws that apply to municipalities and the rest of state government should apply to all of state government.

Create the State Equivalent of the Congressional Budget Office

We want to 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. We applaud State Senator Jamie Eldridge for recently introducing 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.

Post All Legislators’, Candidates’, and Policymakers’ Statements of Financial Interests Online

Massachusetts is one of a minority of states that does not post Statements of Financial Interests (SFI) online. Under the current process, all requests for the SFIs go through the State Ethics Commission which then provides the name of the requester to the public figure being scrutinized – discouraging public oversight.

Ensure Objective Audits of All State Government

Currently, 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.

Impose Stronger Penalties for Delinquent Agencies and an Effective Appeal System that Encourages Engagement

The Massachusetts Supervisor of Public Records, part of the Secretary of State’s Office, is the independent transparency officer who makes determinations about appeals after agencies reject public records requests, while the Attorney General is the enforcer. If the Attorney General disagrees with the Secretary of State’s decision, enforcement is not ensured. This has happened repeatedly with past attorneys general. Legislation should be enacted that gives the Secretary enforcement powers by allowing the office to seek judicial relief on its own.Citizens who go into court to seek judicial relief on a public records matter should be entitled to have legal fees reimbursed by the related agency as a matter of course. We’ll dig deeper, but an early look at the public records reform bill released by the state Senate yesterday appears to be a big boost for citizens seeking judicial relief.

Include Invoices and Contracts as Part of Massachusetts Open Checkbook

When Massachusetts Open Checkbook launched five years ago, it vastly improved the state’s handling of public records, providing comprehensive details about the budget to anyone with an internet connection. The public should have access to what vendors are charging us and exactly what we’re being charged for. Having invoices and contracts attached would provide clarity and reduce the need for public records requests.

Reform the Massachusetts Public Records Law to Force More Electronic Disclosure and Greater Compliance at Lower Cost to the Public

Electronic disclosure of records should be the default option. Regularly requested records should be disclosed online. The law should also be amended to require more prompt disclosure with strong, enforceable (and enforced) penalties for lack of compliance. Under current law, requests are frequently met with bureaucratic obfuscation in the form of clarification requests or fee demands that are intended only to deter public inquiry. Additionally, the practice of agencies charging exorbitant fees to the public must be curtailed.

Several agencies refuse to release digital records on the grounds that such records could be altered. As a result, records such as emails, which can easily be exported as .pdfs and burned onto a CD, are printed out and hand-redacted, leading to prohibitive labor costs that can end requests before they’ve even begun. As a nationwide leader in technology, we should be able to overcome any security issues related to electronic disclosure. We are hopeful that the public records reform legislation introduced by the House and Senate would accomplish this.

Public Records Officers for Every Agency

In the absence of a public records officer, requests are an unwanted burden – “yet another thing” an agency has to deal with. This translates into a low fulfillment rate, ignorant or overzealous redactions, and the imposition of exorbitant fees. Assigning competent, passionate public records professionals makes everyone’s lives easier and shows a commitment to transparency that goes beyond lip service. Through a policy directive, Governor Baker accomplished this with the agencies that report to him. It should be law throughout government entities in Massachusetts. We are hopeful that the public records reform legislation introduced by the House and Senate would accomplish this.

Pare Down the Number of Exemptions to the Public Records Law

One often-abused loophole is called 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 that they are and that anything less results in only the illusion of transparency.

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

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.

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.