Time to End Mass. Legislature’s Self-Exemption from Open Meeting Law

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PRESS RELEASE: Pioneer Contends the Legislature’s Self-Exemption from the Massachusetts Open Meeting Law is Unconstitutional and Requested an Informal Advisory Opinion from the Attorney General’s Office

Related press coverage: Boston HeraldChabot: Transparency watchdog takes aim at AG; Associated Press: Group: Lawmakers’ open meeting exemption unconstitutional; State House News ServiceAG declines request for opinion on Legislature, open meeting law; MassLive: Massachusetts AG Maura Healey won’t offer opinion on legislative exemption from Open Meeting Law

 

Pioneer’s Argument     

We contend that the legislature’s self-exemption from the Massachusetts Open Meeting Law (OML) impedes the public’s ability to exercise the rights conferred to it under the Massachusetts State Constitution.  A public kept in the dark about critical policy decisions cannot hold its elected representatives accountable.

Article V of our state’s Declaration of Rights requires that the branches of government “at all times” be accountable to the people.  Restricting the public’s access to legislative meetings and records fundamentally undermines that basic right.

Our Constitution goes so far as to vest the Commonwealth’s citizens with the right to “give instructions to their representatives.”  The legislature’s lack of transparency negates the public’s ability to exercise this right because, of course, access is required to reasonably determine what ‘instructions’ should be made.

While Massachusetts has one of the nation’s longest lines of transparency laws – providing public access to government records as early as 1851, the Reporters Committee for Freedom of the Press ranked our state among the worst in the nation for government transparency.  A principal reason for the low ranking?  The legislature’s self-exemption from the OML.

State leaders in addition to the Attorney General seem to agree, at least publicly, that open government is fundamental to our democratic process.  It’s high time the legislature stops exempting itself from our proud history of self-governance and democracy.

Background

In the interest of pursuing a healthy and vibrant democracy, Pioneer Institute is challenging the constitutionality of the legislature’s blanket self-exemption from the OML.

We asked Attorney General (AG) Maura Healey to endorse our position and issue an informal advisory opinion to that effect.

We sought such an advisory opinion from the AG because she is the state officer charged with enforcement of the OML under G.L. c. 30A, §25(b) and is authorized to issue informal advisory opinions pursuant to 940 CMR 29.08.

Attorney General Healey has also recognized publicly the importance of transparency, stating “no one (serving in government) should have a blanket exception to the public records laws.”  The AG has made clear from the earliest weeks of her tenure that the “aggressive” enforcement of transparency laws, more specifically public records laws, would be a priority for her office. 

While the AG’s responses to Pioneer Institute do not indicate if her office is in agreement with our opinion challenging the constitutionality of the legislature’s self-exemption from OML, the Institute is surprised and disappointed that her office refused to render an informal advisory opinion as we requested.

In refusing to render such an opinion, the  AG’s response stated, “although the OML and the regulations promulgated thereunder do allow the AG, through the Division of Open Government, to issue advisory opinions, this power is limited to opinions regarding the operation and implementation of the OML itself” and also that “precedent from the Supreme Judicial Court would forbid it.”

The Institute respectfully disagrees with the narrow assertions of the AG’s Office regarding its authority to issue such an opinion on this matter and calls upon her to reconsider and render an informal advisory opinion.

Written Communications between Pioneer and the Office of the Attorney General

We briefly describe below the four communications (and have attached the three written communications as PDF files) on this issue between the Pioneer Institute and the AG’s Office.

Communication 1 (February 1)Letter making initial request from Pioneer Institute to Attorney General Maura Healey for an advisory opinion pursuant to the AG’s authority under 940 CMR 29.08 regarding the constitutionality of the Massachusetts legislature’s exemption from G.L. c. 30A, §§18-25 (the OML).  This letter makes the primary legal arguments and provides the accompanying citations that Pioneer believes would serve as a basis for an analysis of the constitutionality of the legislature’s self-exemption from the OML.

Communication 2 (February 2):  A telephone conversation whereby AG staff informed Pioneer that formal opinions can only be requested by the heads of public agencies and therefore the Office was barred from responding to our letter of February 1.

Communication 3 (February 3):  Letter from Pioneer Institute to Office of the Attorney General stating that Pioneer’s February 1st request was for an informal advisory opinion expressly authorized by the OML in G.L. c. 30A, §25(b) and codified in 940 CMR 29.08.  The statute and code do not limit who may request an informal advisory opinion.  Pioneer repeated its request for review and consideration.

Communication 4 (February 16):  Letter from Office of the Attorney General to Pioneer Institute stating that the AG’s Office cannot provide such an advisory opinion because its power is “limited to opinions regarding the operation and implementation of the OML” and the topic of Pioneer’s request falls outside of that authority.  The Office of the Attorney General argued further in this letter that it is an administrative agency charged with enforcing the OML and that “administrative agencies do not have the power to declare unconstitutional the statutes that created them.”

We hereby request that the Attorney General Maura Healey reconsider her response.