Currently, there are only two states that exempt the office of the Executive from their public records laws.
One is Michigan, where Governor Rick Snyder is embroiled in a scandal regarding how much he did or did not know about the lead-contaminated water in Flint. Outrage over the crisis has led to a national call to end the exemption and sparked a growing discussion about whether public sector accountability is possible without transparency.
The other is Massachusetts.
As we’ve written about before, the Massachusetts Supreme Judicial Court (SJC) opinion in Lambert provided the governor with a discretionary exemption to public records law. Although governors rarely deny public records requests, they – including Governor Charlie Baker – point out that they comply as a courtesy, since they are under no legal obligation to do so.
Maintaining that the exemption applies, whether or not it is used in response to a specific request, gives the governor’s office an out if a request has the potential for a damning or embarrassing outcome.
At best, governors for decades have used Lambert to buy time before the law is changed. At worst, they’ve used the decision to create the appearance of openness without the actual substance.
Governor Baker has already demonstrated a commitment to transparency. This summer he issued state-level mandates that have led to public records breakthroughs from agencies like the State Police and the MBTA. By proactively stepping away from Lambert and making his office accountable to the spirit and the letter of public records law, the Governor has a valuable opportunity to win the bipartisan support of the Commonwealth’s open government community and change the relationship between state government and the residents of the Commonwealth for decades to come.
Moreover, it is the logical next step for Governor Baker after the good changes already implemented this past year.
The alternative? Should Governor Snyder bow to pressure and end his office’s public records law exemption, the Massachusetts governor’s office would stand alone as the least transparent state in the union.
With so much to gain and nothing to lose, Baker’s choice is clear.
J. Patrick Brown is the Editor of MuckRock.com, an organization which facilitates public record requests and serves as an independent news source covering government transparency issues nationwide.