Public Records Reform: Our Take

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The public records bill that was signed into law by Governor Baker last week and takes effect January 1, 2017 contains significant improvements to existing law and will no doubt improve the Commonwealth’s poor national rankings for government transparency.  The legislators who crafted it have done the state a service.

But there is more work to do – Massachusetts should hold the highest ranking.  Transparency, after all, measures the health and vibrancy of our democracy.

Pioneer Institute has long supported many elements of the bill, including subjecting the MBTA Retirement Board to public records law and 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.  We applaud those improvements.

However, some aspects of the bill fall short of true reform and other key components of transparency were kicked down the road to be “studied” rather than acted on in this policy making window.  Here’s what we see that needs improvement:

Post All Legislators’, Candidates’, and Policymakers’ Statements of Financial Interests Online – Massachusetts is among a minority of states that does not post Statements of Financial Interests (SFI) 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 – discouraging public oversight.  The new 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.

Public Records Request Response Time for Agencies and Municipalities – Under current law, agencies have 10 days to comply with requests, a deadline often ignored because penalties for non-compliance are not significant.  The new law requires each agency and municipality to designate a records access officer, which will no doubt improve compliance, and also invokes harsher penalties for non-compliance.  However, the 10-day deadline in the new law doesn’t mean requests will be complied with in that time.  Under certain circumstances, an agency or municipality can have an additional five or 15 days, respectively, to comply.  They can also petition the supervisor of public records for even more time.  We must be vigilant to ensure that the 10-day rule doesn’t morph into a 15-day or 25-day rule over time.

Attorneys’ Fees – The new law provides for requesters of public records 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 made for a commercial purpose.  Because of the subjectivity involved in evaluating some of these elements in waiving 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 accept such a risk, and the deterrent for non-compliance by the agency is thus less effective.

Include 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. We believe 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.

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 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 law did not lift the governor’s blanket exemption but asked the special legislative commission to study the exemptions enjoyed by both the governor and the judicial branch.

Eliminate 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 results in only the illusion of transparency.  The new law did not eliminate this problematic exemption.

While we at Pioneer recognize and applaud the positive steps toward greater transparency that this bill embodies, we also emphasize that there is much more work to be done before Massachusetts takes its rightful place as a national leader in government transparency.