Earlier this month, Massachusetts transparency advocates celebrated a rare win when the North Eastern Massachusetts Law Enforcement Council (NEMLEC) – a regional SWAT team which covers the greater Boston area – agreed to be considered a public entity, and therefore subject to public records laws.
If that doesn’t sound like much cause for celebration – why wouldn’t a police force be considered a public entity? – then you’ll be further underwhelmed to hear that this only came after a year-long suit with the ACLU that cost the taxpayer (yes, you) $30,000. NEMLAC’s argument, that is was technically a non-profit that just so happened to run by law enforcement officials operating in their official capacity, was laughable on its face, and the fact that it took lawsuit to get them to back down really underscores how far we have to go to catch up with national standards on open government.
H3665, which the legislature is considering in the coming months, is a step in the right direction, if only a step. It proposes some basic and long-overdue updates to our anemic public records laws, most importantly on the subject of attorney’s fees.
The idea behind recouping attorney’s fees is simple – if the state is doing such a poor job of upholding its own laws that the only option left to you is to take them to court (such as with NEMLAC), and you win that case, you shouldn’t be financially penalized for doing your civic duty. Whatever court fees you incurred should be paid for by the delinquent agency, which both discourages that dereliction, while incentivizing lawyers to take on particularly egregious cases pro bono. It’s an obvious win-win for transparency, and one that has been implemented by 47 states and the federal government, with Massachusetts as one of the shameful outliers. Despite our self-conception as forerunners of democratic progress, we’re not just late to the party on this one, we’re getting there right as they’re folding up chairs.
It’s hard to imagine anybody opposing such a simple fix to a fundamentally flawed system, but once again, when it comes to transparency, Massachusetts finds new ways to disappoint. Opponents are calling on representatives to kill the bill as it currently stands, claiming it to be an “unfunded mandate” that’ll bleed the state dry with frivolous public records lawsuits.
First off, enforcing a law that’s been on the books for decades isn’t an unfunded mandate. If your agency can’t afford to lose a lawsuit that stems from you not doing your job, then do your job; the one you swore an oath to the public to do. And secondly, these so-called “frivolous lawsuits” would only pay out in cases these lawyers won – i.e., where agencies clearly violated the law. Is having to sue a SWAT team to admit they’re a law enforcement agency a frivolous lawsuit? Yes, but that’s the fault of a frivolous defense, not the plaintiff.
For too long, agencies have relied on ludicrous loopholes and specious arguments to flout public records laws, with little fear of reprisal. If this bill passes, you won’t have to be an ACLU or a Boston Globe to hold these agencies accountable – you just need a solid case, and a lawyer’s whose confident enough to take it on. And that scares the hell out of its critics.
Considering that failings of Massachusetts public records laws stem from a complacency borne out of a lack of enforcement, a little fear is a welcome change.
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.