Boston Herald: State Undercuts Open Records Law

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Friday, September 14, 2012

By Tom Nash

Tom Nash is news editor at MuckRock, a Boston-based, online public records request service that is partnering with Pioneer Institute on its government transparency initiative.
What happens when the watchdog is part of the problem?

Massachusetts law supposedly ensures that state agencies fulfill public records requests within 10 days. MuckRock, an online service that tracks such records, has fully documented that state agencies are at best sluggish in responding and in many cases simply ignore the law. You know you have a problem when state agencies average almost two months to fulfill such requests – when they respond at all.

We need a watchdog to make sure the law is followed and that we are governed in a way that is transparent and accountable to the people.

The Supervisor of Public Records Office, which is housed in the office of Secretary of State Bill Galvin, is tasked by law to serve as the public’s watchdog, acting to ensure local and state authorities live up to the law. The office serves as arbiter when citizens appeal requests denied by officials or are frustrated by requests stuck in limbo.

Evidence from dozens of requesters as well as MuckRock’s own appeals demonstrates that the Supervisor of Records isn’t serving as a robust oversight body. Long, opaque appeals processes or, worse, requests that go completely ignored are in fact the norm. A recent public records request pertaining to the office’s own operations revealed that it doesn’t even keep an auditable log of appeals.

This June, MuckRock asked the office for logs, databases or other records that tracked public record request appeals. If the office didn’t track appeals, we requested the last 10 appeals received by the office in 2011 and any manuals detailing how to handle those cases.

It took 68 days and a follow-up before Supervisor Shawn Williams responded to MuckRock’s request. His answer? Well, it was less than transparent: “The only records responsive to your request are the copies of the last 10 public records files received in 2011. There are no other records responsive to your request.”

If we want responsive public servants who are accountable for their performance, we need transparency.

The Supervisor of Records proved responsive in one way. Despite ignoring the very public records laws the office is supposed to enforce, he gladly estimated the total cost of providing records two months late: $106.50 for 255 pages. State law encourages agencies to waive fees for requests in the public interest; the supervisor may have felt there was no public interest in demonstrating transparency in his own office.

How the office processed those 10 appeals is still a mystery, despite MuckRock’s requests. But the documentation did show one thing – it takes a whopping six months for appeals to be decided. That’s six months for information to go stale and for citizens to lose interest.

Delay, whether systematic or purposeful, is unacceptable in an open government that relies on active citizen participation to ensure integrity.

The agency charged with ensuring transparency must have standards higher than the agencies it watches. Without a system to track appeals filed and their dispositions, and without timely responses, we only know what the government wants us to know. If we stay on the sidelines and let this continue, the very foundations of our democracy are at risk.