For Sunshine Week, we've been reporting on the sad state of the Massachusetts public records law, which hasn't been updated since 1973 -- the year the cellphone was invented. Earlier in the week, I spoke to two of the state senators who are behind an effort to pass a bill that would reform the law.
Under the public records law, anyone can request documents from any state or local government agency. Agencies are required to comply with records requests in 10 days, but often stonewall for months because they generally face no consequences. There are a large number of exemptions which government agencies invoke (rightly and wrongly) to withhold information. The law also allows government agencies to charge huge fees for information that is in the public interest.
But "An Act to improve public records," a bill filed in both the state house of representatives and state senate, aims to change that. The bill would, among other things, make it easier for the public to access electronic records, require government agencies to appoint a single person to handle records requests, reduce how much money government agencies could charge for records, and require judges to award attorney's fees to people who successfully sue government agencies for wrongfully withholding records. The bill currently has 49 co-sponsors in the house and senate.
"I'm a strong believer that sunshine is the best disinfectant, that our government – both state and at the local level," James Eldridge (D-Acton), the author of the bill, said, explaining his motivation for getting involved in public records reform.
Eldridge said he has filed the bill three times now, and thinks he's getting closer to getting it passed. "The bill was reported out of committee last session and I think there is a greater focus on government transparency on the senate side and I also believe that Governor Baker will champion this as well," he said.
Jason Lewis (D-Winchester), the bill's lead sponsor in the senate, spoke to me as well. "Making public records readily accessible is central to having a transparent and accountable government. And to me, having an accountable government that the public can trust is central to our democracy, to such a core issue," he said.
Lewis served in the state house of representatives from 2008 to 2014. He's now serving his first term in the state senate after winning a special election last April.
"[The public records law] has been an important issue to me personally since I came into the legislature. Then when I came into the Senate last year, and now just began my first full term, I wanted to really make this issue a priority in my legislative agenda," he said. "The legislature over the last several years has successfully enacted a number of major reforms to our ethics laws, our campaign finance laws, our lobbying laws, so to me this is kind of the next logical place where we need to improve our governance."
I asked both senators about Secretary of of the Commonwealth William Galvin, whose office is responsible for oversight of the public records law and who recently said he is working on a ballot question to update the public records law.
Galvin has been criticized frequently by the press because his office typically sides with government officials instead of the public when there are disputes over public records. In a recent ruling that has been criticized by The Boston Globe and other news organizations, Galvin's office ruled that police departments have discretion over whether to release arrest reports and mugshots. The ruling came in response to a Globe reporter's attempts to get information about police officers who have been arrested for drunk driving.
Eldridge said he wants to update his bill to address Galvin's ruling. "I would certainly hope that we could add that to whatever bill comes out of the committee and I do disagree with the Secretary of State's ruling on that," he said.
Lewis didn't offer any criticism of Galvin. "I think there is still a role for the Secretary of State to make these kinds of determinations. I certainly hope that those determinations are made with the public's interest and need to have access to public information as the guiding principle as much as possible," he said.
While Galvin has faced criticism for his handling of the public records law, he has also criticized the legislature for exempting itself from the law. The legislature, along with the governor's office and the state courts, are exempt from the law. I asked both senators about this.
"The main focus of the [current] bill was making it easier for individuals to get information from current agencies that the law is applicable to, but I have always said I would support an expansion to the legislature," Eldridge said.
Eldridge also said that he has filed a separate bill to apply the public records law to the administrative branch of the judiciary. "I think that we have a very broken criminal justice system and we have to better understand how certain decisions are being reached that hurt a lot of poor people, especially in communities of color," he said.
Lewis seemed a bit more reticent when I asked him about applying the public records law to the legislature, but still possibly open to the idea. "Personally, I believe that the legislature is held accountable to the public because we have elections every two years and the legislature does conduct most of its business in public, through public hearings and public sessions. However, that said, I do think we should seek to make the legislature and other branches of the government as open and transparent to journalists and the public as possible, and so I would like to see us have a discussion about the best way to apply the principles of the public records law to the legislature and other parts of our government that are currently exempt," he said.
Lewis did add that he wants more information about the legislature posted online, such as the votes of all committees.
Given the difficulty in passing any legislation to update the public records law at all, it's hard to blame lawmakers – even ones seriously interested in increasing government transparency – for not trying to significantly open the legislature up to the public. But in a state where ex-Speaker of the House is practically a synonym for convicted felon, more transparency in the legislature would go a long way. Eldridge seemed cognizant of that when we spoke.
"As someone that files a lot of legislation on universal healthcare and combating climate change and fair taxation, I really think that given that the cynicism that the public often has for the legislature or elected officials that part of the way that we move bolder legislation forward on other issues is by dramatically increasing transparency and a clear understanding of how the democratic process or the legislative process works," Eldridge said.
I also got a chance to tell both senators about my experience trying to obtain internal affairs records from the Massachusetts State Police. Last year, I requested the internal affairs records for the 49 state troopers with the highest number of complaints over a four year period. The State Police responded that it would take so much work to provide me with a fee estimate, so they would first need to charge me a separate "research fee" so they could determine the fee for the records.
Elridge let out an "ugh" when I told him about the "research fee," telling me he "disagree[d]" with it. Lewis said he was "shocked to hear" about it. Neither had ever heard of anything like it, but said it was the sort of thing they're trying to stop.
At The Bay State Examiner, we're standing behind the public records reform bill and asking our readers to contact their state legislators, who may not have signed onto the bill yet, to ask them to pass it. It should only take a few minutes, so we hope you'll help.
To find your state representative and senator and their contact information click here. Tell them you support transparent government and hope they’ll pass HB 2772 (if they’re a representative) or SD 1235 (if they’re a senator). If you’ve got a few more minutes, contact the governor’s office to voice your support for transparent government as well.