This past weekend, The Boston Globe ran a piece discussing the failure of Secretary of the Commonwealth William Galvin to enforce the Massachusetts public records law, the state law that is supposed to guarantee the public access to government records. The whole story is worth a read, but I wanted to highlight the main points. According to The Globe, Galvin's office routinely sides with government agencies when people appeal decisions to him:
A Globe review of 50 of the most recent rulings by Galvin’s public records division found the office ordered agencies to release more documents or justify the fees they demanded only 20 percent of the time. Galvin’s own review found that the media companies, lawyers, activists, and others who have filed complaints this year got all the records they requested just 27 percent of the time.
Critics say Galvin’s office, which is charged with overseeing the state’s public records law,is making a relatively weak statute even weaker by not doing more to make bureaucrats comply. The office often takes months to issue decisions, usually goes along with government explanations for withholding documents, and doesn’t enforce orders even when it rules that records must be released, according to the Globe review of appeals filed with the agency’s public records division.
The Globe also explains that Galvin's office has refused to refer cases to the attorney general's office, which has more power to enforce the law:
[Galvin] agreed with the decision to stop asking the attorney general’s office to enforce orders to release documents four years ago, even though his office receives more than 600 such complaints a year. Instead, Galvin’s office leaves it up to citizens to go to court to force agencies to comply with the rulings, something that can cost tens of thousands of dollars in legal fees.
“Litigation isn’t a reasonable option for most members of the public, or even most members of the media,” said Justin Silverman, executive director of the New England First Amendment Coalition, which supports open government. “The appeals process is really their only option.”
Galvin said the agency stopped referring orders to the attorney general because Martha Coakley’s administration indicated they were not a top priority. In addition, the attorney general’s office has refused to enforce some orders in the past because it disagreed with the secretary of state’s legal reasoning.
Finally, The Globe points out that this is all especially problematic because the Massachusetts public records law is already one of the weakest in the country:
Compared with other states, Massachusetts gives citizens far less power to demand records from state and local agencies. The statute contains dozens of exemptions that allow agencies to refuse requests, and no clear penalties for violations, such as taking more than 10 days to respond to requests or withholding records altogether. The law also puts few limits on how much agencies can charge for records, sometimes leading to agencies demanding tens of thousands of dollars for documents that would cost a fraction of the price in other states.
And unlike most other states, requesters in Massachusetts can’t even recoup their legal fees when they successfully go to court to obtain records.
I have some experience making public records requests and appealing to the Secretary of the Commonwealth when government agencies won't comply, and my experiences are in line with The Globe's reporting. The secretary's office often takes a long time to close cases, makes little to no effort to contact you during the investigation, and often does not even issue written rulings when they close a case, making it difficult to know if they have done anything to address your appeal. When his office does issue a written ruling, it often seems like Shawn Williams, the attorney who handles the appeals for Galvin, has not even fully read your appeal because he often does not address all the points you raised.
Galvin has proposed giving his office more power to enforce the law, but that's not really an ideal solution, considering his apparent lack of interest in the law. In fact, Galvin himself was caught violating the public records law earlier this year after a Republican candidate running against him made a records request to his office.
While giving the Secretary of the Commonwealth more power to enforce the law might help, another proposed solution is to allow people who are forced to sue for access to public records to recoup their attorneys' fees if they win the case. This would provide more incentive for people to sue when they are denied records, which would hopefully reduce the number of government agencies flouting the law. This would give the public a better ability to enforce the law without relying on the secretary or attorney general's offices.
WBZ did a follow-up on The Globe story which you can view here: