THE SECRETARY OF SECRECY

Image by Tak Toyoshima

Image by Tak Toyoshima

Introducing “Broken Records,” a column about public information

BY ANDREW QUEMERE AND MAYA SHAFFER

2016 is shaping up to be the most important year in the last four decades for government transparency in Massachusetts. It appears that the state’s dismal public records law will be updated significantly for the first time since the 1970s. We started this column to discuss the dysfunctional nature of our public records law. We are the cofounders of The Bay State Examiner, a news media outlet dedicated to covering government transparency and accountability issues in the state, and we are both prolific records requesters.

This past year, state lawmakers have finally been putting effort into updating the law. A bill filed in the Legislature in the current session would have improved the law in a number of ways, but it was radically changed for the worse, then approved by the state House of Representatives in November. The state Senate will now put together their own revision of the bill, then both bodies will have to sort out the differences in committee. Our hope is the resulting bill will improve access to public records, and you can bet that regardless of the outcome, you’ll be reading about it here.

There’s a consensus that the public records law in Massachusetts is broken, and there’s also a consensus about why. “The problem is … that we don’t have any effective mechanism of enforcement,” according to Secretary of the Commonwealth William Galvin.

Galvin oversees the Bay State’s public records law, which is supposed to ensure the public’s right to access government documents. But Galvin, who’s held his position for about 20 years, has long complained that his office doesn’t have enough authority to effectively police lawbreaking agencies. And while we agree with Galvin on that point, we can’t help but notice that his office is shirking its existing responsibilities. Galvin’s office did not respond to multiple requests for comment.

The secretary of the Commonwealth’s office hears appeals from people who have been denied access to public records, and it can order agencies to produce records. However, Galvin has no enforcement power, so he  must turn to the Attorney General’s office to take noncompliant officials to court. The resulting process is a nightmare. While state law is supposed to grant access to records within 10 days, the process usually takes months when Galvin’s office gets involved.

After reviewing dates associated with appeals posted on Galvin’s website between June through November, we found that his office took an average of about 59 days to “close” an appeal after it was “opened.” Dozens of appeals—roughly 20 percent—took more than 100 days. And after reviewing the numerous appeals we emailed last year, we found that his office took an average of about 11 days to “open” an appeal after receiving it. Additionally, when Galvin’s office sides with a requester, it grants the agency 10 extra days to comply.

The outrageous wait is only where the problems begin. Galvin’s appointee, Supervisor of Records Shawn Williams, often makes confounding decisions that seem to have no basis in law. “Some of the decisions are confusing and surprising,” says Todd Wallack, a Boston Globe reporter. Wallack filed more appeals than anyone else last year, and he calls the process “unpredictable.” In one of Wallack’s most talked about appeals, Williams ruled that police departments have complete discretion over whether to release arrest reports, which allowed police to withhold information about cops arrested for alleged drunk driving. The Globe is currently suing to reverse the decision.

If Galvin’s office rules in your favor, you might still be out of luck. The secretary of the Commonwealth doesn’t have the power to enforce his own orders, so agencies frequently ignore them, a problem even he has acknowledged: “I could cite many instances where agencies have refused, outright refused, to cooperate, and we’ve had to issue orders, but we didn’t have any effective means of enforcement.”

When an agency fails to follow an order, Galvin’s office is supposed to turn it over to the AG. But that’s a rare occurrence. In fact, Galvin stopped referring orders altogether for five years, only resuming last year. “The problem with references to the attorney general is they went nowhere,” Galvin complained. “What we discovered was that, very often, the attorney general had higher priorities than pursuing this matter.”

The truth is more nuanced. According to a 2008 report in CommonWealth magazine, written before then-Supervisor of Records Alan Cote stopped referring violations, the AGO worked very slowly and only helped requesters get some or all the records they requested in 13 out of 52 cases. Records provided by Galvin’s office show that former AG Martha Coakley’s office continued to side with the supervisor of records in some cases and to disagree in others after the CommonWealth article was published. So while Galvin seems to be right about attorneys general having other priorities, the referrals weren’t a complete waste of time.

PART OF THE PROBLEM

Reporters have asked Galvin a number of times whether he deserves any blame for the sorry state of public records access. Invariably, he puts the blame on everyone but himself. It’s the Legislature’s fault for not updating the law in so long. It’s the AG’s fault for not enforcing his orders. In one interview, Galvin even passed the buck regarding decisions his own office makes, telling WBZ that his appointee, Shawn Williams, is “independent” from him.

“[Galvin] is part of the problem. He is not part of the solution,” says Andrew Goodrich, executive director of Massachusetts Citizens for Jobs.

In June, Goodrich sent a request for Galvin’s correspondence with the two highest-ranking state legislators, House Speaker Robert DeLeo and Senate President Stanley Rosenberg, and some of their staffers. Seven months and more than a dozen follow-up emails later, Galvin’s office hasn’t even acknowledged receiving the request. MuckRock has sent Galvin’s office a number of records requests in the past few years and found that it takes an average of 103 days to comply (and that average only takes into account completed requests, so it doesn’t include Goodrich’s). It’s hard to have faith that Galvin is doing his best to keep records accessible when he won’t follow the law himself.

Local media slammed Galvin for his failures in a widely published editorial last year. Galvin responded to the criticism by proposing his own ballot initiative with some timid public information reforms and mounting a campaign to defend his reputation. He told WGBH that he didn’t need to replace his appointee, Shawn Williams, and insisted that the Globe’s factual claim that his office takes months to close appeals wasn’t true. (Later in the appearance, he contradicted himself by saying that appeals are generally closed within 90 days.) In late July, Galvin returned to WGBH and claimed his office had the entire appeals process down to just 60 days—including the 10 days the agency had to respond to the initial records request.

To check Galvin’s numbers, we broke down the statistics for the following month, August, and found it took an average of 69 days just for his office to close an appeal after opening it. About a third of these appeals were made because an agency failed to respond to a request. ln these cases, all Galvin’s office needed to do was contact the agencies and tell them to respond, but these took an average of 47 days to close. When Galvin’s office had to rule on an actual dispute, it took an average of 92 days.

Goodrich says that Galvin talks a good game, but it’s all smoke and mirrors: “Secretary Galvin says that he's a leader on this issue to reform public records … I think that's not true. I think any time he gets caught with the press, he tries to save face.”

That brings us to why Goodrich wanted Galvin’s correspondence. Goodrich figured that if Galvin was focused on reform, he would be encouraging legislators to take action. Goodrich grew tired of waiting for a response to his June request, so in December, he sent a narrower request. Instead of asking for all written correspondence, he asked only for correspondence related to public records reform. This time, Goodrich got a response: Galvin’s office said they had no responsive records.

We wanted to know if Galvin or his staff had been meeting or speaking on the phone with anyone about records reform over the past few years, so we asked for their schedules. It took more than 10 days, but we got the same response as Goodrich.

In December, Galvin dropped his ballot initiative. “I don't know if we had enough [signatures]. We had a lot,” he told the State House News Service. He said that he and others had collected “tens of thousands” of signatures, but experienced “some hiccups” when trying to ensure they were properly documented. We requested copies of the signatures, but Galvin’s office only turned over 15, saying the rest were never submitted.

THE FIX

Massachusetts lawmakers are working on a bill to update the state’s public records law, but none of the proposals thus far would do much to address the fundamental problems.

A version of the bill approved by the House would require Galvin’s office to rule on appeals within 10 business days. While cutting down the wait would be a positive development, it’s unclear how the legislation would actually accomplish this. The bill by itself would not provide Galvin’s office with additional funding, and there would be no penalty for failing to rule in the required window. Despite the seeming inability of Galvin’s office to make good on this provision, spokesman Brian McNiff told CommonWealth that Galvin was “fine” with that version of the bill.

It would be better for lawmakers to address why Galvin’s office is part of the process at all. Given that he has no means to enforce his orders, and the AG’s office often interprets the law differently, his role seems extraneous at best. While his office sometimes convinces agencies to voluntarily comply, its main function seems to be serving as a roadblock between requesters and the AG, who refuses to look into violations of the law absent a referral. As Todd Wallack puts it, “The current bifurcation often creates problems.”

There are a few possible solutions. One would be giving Galvin’s office more power to enforce the law. Another would be to streamline the process by eliminating Galvin’s role entirely and having the AG’s office handle the process from start to finish. A third possible idea was suggested by William Galvin in 2001 (although he no longer seems to support it). According to a report published in the Globe that year, Galvin proposed legislation that would create an independent public records commission with the power to take lawbreaking agencies to court, which he said would “reduce any inconsistencies that now exist.”

The latter option is most appealing given the poor track record of Galvin’s office. And as Alan Cote once pointed out, the AG’s office has a conflict of interest when deciding whether state agencies must release records since it’s responsible for defending those agencies from lawsuits: “You're really asking the attorney general to call her client, who she just represented last week or last month, and say, ‘We're going to take you to court and we're going to sue you to give this record up.’”

Legislators could improve on the commission concept by empowering it to issue civil citations—the equivalent of speeding tickets—to lawbreaking public officials. The current records law has a section that calls for criminal penalties, both a fine and up to year in jail, but it has gone completely unenforced—literally. When the Globe recently asked the AG’s office about it, a spokesperson said they couldn’t recall even one prosecution.

Issuing citations would be more practical since they would not require the tremendous resources and high burden of proof that criminal cases would. The fines would be paid directly by lawbreakers, not governmental agencies, so the burden on taxpayers would be limited. Some serious cases, such as the deliberate destruction of public records, should still result in criminal charges.

Another important update, and the one most likely to be adopted in the near future, is giving requesters the means to enforce the law without relying on a state agency. Requesters can already sue agencies that don’t comply, but that’s not realistic for most people. Unlike 47 other states, litigants are not awarded attorney’s fees even if a judge sides with them, and hiring an attorney to handle one of these suits can cost tens of thousands of dollars or more.

The original version of the bill currently being debated by lawmakers made awarding legal fees to requesters who prevail in lawsuits mandatory, but the revised bill approved by the House leaves it to the discretion of judges. The House bill also renders the question of fees largely moot by imposing a nearly impossible 30-day window for filing most lawsuits. To be an effective reform, awarding fees must be mandatory or lawyers will see these lawsuits as a gamble.

While our recommendations would be massive steps forward, they wouldn’t fix the records law entirely. They don’t address the gaping holes in the law, like the overly broad exemptions, and the fact that the law doesn’t apply to the Judiciary, Legislature, and Governor's Office. But they would make a meaningful and much needed improvement to what is clearly a broken system.

 

BONUS: Meet the New Boston Globe Public Records Test...

In December, the Boston Globe made public records history when they released the results of what Globe reporter Todd Wallack called “probably the largest test ever conducted of how cities and towns in the state respond to requests for government records from average citizens.” Wallack partnered with WCVB reporter and Northeastern journalism professor Mike Beaudet, who had his students send records requests to all 351 municipalities in the state for reports on how much municipal workers made and police “use of force” policies.

According to Wallack’s reporting, the results were abysmal: “A solid majority—58%—of the Commonwealth’s 351 municipalities did not respond within the 10-day limit set by state law when they received a written request for two records that are almost universally considered to be public. Nearly a quarter took more than 40 days or never responded at all to one of the requests … And more than a dozen outright refused to provide the documents … for legally dubious reasons, such as protecting the privacy of public employees.”

That really put the lie to claims by Geoffrey Beckwith, who said in October: “Every year, cities and towns respond to thousands of public records requests, and they do a great job nearly 100 percent of the time.” Beckwith is the executive director of the Massachusetts Municipal Association, a private lobbying group that local officials in the state funnel tax dollars into. The MMA has been the primary enemy of public records reform in the state, working with legislators to gut or water down any updates that would make it easier to get records, not to mention add some of their own ideas for making it harder.

While we could stop there and bask in the smug satisfaction that Beckwith was proven wrong by a couple of talented reporters and some journalism students, we decided to prove him even more wrong. You see, although this was the biggest public records test by the Globe, it wasn’t the first.

In 2001, the Globe dispatched about 20 reporters to 37 cities and towns. “The reporters sought six records in each town: a phone bill, an appointment calendar of the town administrator or mayor, teacher attendance records, a fire inspection, minutes from a recent zoning board meeting, and a police log,” according to Globe reporter Sean Patrick Lyons. The results, which were detailed in a lengthy expose, were basically the same as the recent test: “Not one of the communities surveyed provided all the records in full compliance of the law … In a quarter of the towns surveyed, every department violated the law, by either denying the request outright or insisting on knowing the reason for it before providing the documents.” And in 1993, the newspaper contacted the municipal clerks and health boards of 25 communities by phone and found that many of them had policies that violated the law.

The point is, public records reform has been a long time coming. It’s no secret that the system is broken, even if there are folks like Beckwith who earn a paycheck to pretend otherwise. Public officials have been breaking the law for too long, and it’s time state lawmakers did something to hold them accountable for it.


This reporting was conducted in partnership with the Boston Institute for Nonprofit Journalism and the Bay State Examiner. Follow BINJ on Twitter @BINJreports for upcoming installments of Maya and Andrew’s ongoing reporting on public information. In the meantime, join journalists and good government advocates this Thursday, January 21 on Beacon Hill for a rally in support of records reform in the Commonwealth.