Secretary of State election has ramifications for government transparency in Massachusetts

Danny Factor, William Galvin, and Dave D'Arcangelo debate at Malden High School (Credit: The Sun). Between the constant news coverage and political ads, it's been nearly impossible to forget that Massachusetts residents will be voting on November 4 to determine who the next governor will be, however, it's been easy to miss another contested office which has important ramification for government transparency in the state.

The Office of the Secretary of the Commonwealth is also up for grabs. Democrat William Galvin, the incumbent who has been the secretary for nearly 20 years, is facing Dave D'Arcangelo, a Malden city councilor and Republican, and Danny Factor, an attorney and member of the Green-Rainbow Party.

One of the secretary's duties is to provide oversight for the Massachusetts public records law, which is supposed to guarantee the public access to government records. The law is used daily by journalists, scholars, historians, activists, and others to investigate all sorts of of issues. When a government agency fails to comply with a public records request, people have the option of opening an administrative appeal with the secretary's office. Appeals are currently heard by Shawn Williams, an attorney who works under William Galvin.

The Massachusetts law is often said to be one of the weakest freedom of information laws in the country, recently earning the state an "F" in government transparency from the Center for Public Integrity.

During a recent debate at Malden High School, the only debate that Galvin agreed to participate in, the three candidates for the position were asked if they thought it was easy for people to access public records in Massachusetts.

William Galvin said he thought it was, but said that people sometimes need help from his office. He said that his office doesn't always side with people making records requests because he has to protect private information such as social security numbers that are sometimes found in government documents.

"Public records oftentimes contain personal information," Galvin said. "There is an obligation both to make the record public but there is also the important thing of protecting your privacy."

Galvin pointed to recent cases of credit card data being stolen from retail chains as an example of how important it is for the state to protect personal information.

Danny Factor criticized Galvin for this answer. "I also have a great respect for individual privacy, but the concerns about the way that the public records law... is being interpreted does not have to do with those instances," he said.

Factor said that many news agencies have had trouble accessing records related to stories that are in the public interest. Factor pointed to a recent story in The Boston Globe where the Massachusetts State Police had denied a blogger records related to a 1951 murder. The State Police claimed the investigation was open even though the suspect had died in 1960 and there was no ongoing investigation. Galvin's office sided with the State Police, allowing them to keep the records secret from the public. Galvin later reversed the decision after it was brought to his attention by the Globe.

The same Globe story also found that Galvin's office sided with the public only about 20% of the time in administrative appeals.

Factor said that public records should be available online within seven days of a request and should not cost any money.

Currently, state law requires government agencies to comply with records requests within 10 days and allows them to charge fees for the labor involved in searching for and redacting records as well as fees based on the number of pages of records. For wide-ranging records requests, the fees can add up to hundred or even thousands of dollars. Government agencies have the option of waiving the fees, but they are not required to.

Factor criticized the law for allowing fees. "Remember that you are the government. The government is the people. These are your records. These are things that you may want to find out about to create better policies in the state and you deserve them," he said.

Dave D'Arcangelo has emphasized the public records law throughout his campaign and criticized Galvin harshly over the issue during the debate.

D'Arcangelo said that Galvin has had 20 years to make a strong effort to push for public records law reform, but has not done so because he doesn't consider it to be a priority. "I'm telling you, it is absolutely my priority. If we don't have freedom of information, then what other freedoms can we expect? It's the absolute bedrock of our democracy," he said.

Galvin has spoken out before to say that he believes the current public records law, which has not been significantly updated since 1973, is too weak and needs to be reformed. Galvin recently told WBZ that the legislature bears the blame for the state's weak public records law.

"I've tried to get the law changed as most recently as 2009," Galvin said. "The legislature exempts itself from the freedom of information law... so obviously there's a suspicion in their part to do anything that makes it any easier."

In 2009, Galvin said during an interview with The Boston Globe that under the current law, the secretary has very limited powers when it comes to providing oversight.

To an extent, he has a point. While Galvin's office can issue opinions and censure public officials for failing to comply with records requests, it must rely on the attorney general's office to actually enforce the law against agencies that refuse to cooperate with the secretary's rulings.

But, for the past four years, Galvin's office has refused to refer any cases to the attorney general's office. The two agencies have pointed fingers at each other, with Galvin claiming that the attorney general's office doesn't consider the public records law to be a priority and the attorney general's office denying it.

D'Arcangelo said during the debate at Malden High School that the first item on his 11 point campaign agenda is updating the public records law to increase transparency. The agenda, which he provided to The Bay State Examiner, lists a number of ideas he has to update the law.

The agenda states that government agencies should be required to post line-by-line budgets and other records online. It states that records custodians should be required "to undergo a thorough and comprehensive training, which would be conducted under the auspices of a new non-partisan consortium of good government and political watchdog groups in concert with the Judiciary and the State Ethics Commission." It also states that there should be "new enforcement policies that would provide stiff civil and criminal penalties" for public officials who violate the law and that the law should have fewer exemptions.

"I would... [u]se my bully pulpit to significantly alter [the law]," D'Arcangelo told The Bay State Examiner via email. "I would file legislation, convene working groups and bring in the press, good government groups and citizens to update our public records laws."

D'Arcangelo also said that he "would be sure to hire professionals into important positions... who will choose to interpret and implement the laws and regulations in a way that is more open to disclosure, not less open to disclosure."

D'Arcangelo has also tried to make an election issue out of the way Galvin's office has handled a public records request from D'Arcangelo's campaign. D'Arcangelo asked for information about funding for public service announcements produced for the secretary's office which feature Galvin in them. D'Arcangelo has criticized the idea of politicians appearing in PSAs, saying they are essentially campaign ads underwritten by taxpayers.

D'Arcangelo said Galvin's office took nearly two months to respond to his records request before asking for $5,300 in fees, a figure D'Arcangelo called "outrageous." D'Arcangelo has said Galvin should waive the fees because the public has an interest in knowing how much was spent on the PSAs.

Galvin retorted that D'Arcangelo is trying to get taxpayers to fund his campaign research.

"I don't use public employees for opposition research or campaign research," Galvin told The Republican. "If he's serious, he has to provide money to pay public employees for the research he's insisting be done."

The Boston Globe, despite sometimes criticizing Galvin, ultimately endorsed him in the upcoming election. The Globe said D'Arcangelo "should be applauded for focusing attention on the Commonwealth’s weak [public records] standards," but said "the real problem is the way the law is written, and only the Legislature can add teeth to the provisions."

While it's certainly true that the law itself is a big part of the problem, a new secretary who is more committed to transparency could be an important factor in pushing lawmakers to finally address the law's shortcomings.

Whether Dave D'Arcangelo or Danny Factor is the person to do so will be up to voters to decide.

William Galvin and Danny Factor did not respond to requests for comment on this issue.

Watch the entire debate at Malden High School below courtesy of The Sun: