THE SECRETARY OF SECRECY

Broken Records is a column about public records access in Massachusetts. In this, our first, column we explore William Galvin's role in making a mess out of Massachusetts records access, and we discuss the push to to reform the law. We also look at the recent Boston Globe survey of town responses to records requests that found that Massachusetts is failing, which is exactly what all the other surveys found.

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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:

Secretary of state not doing enough to enforce public records law

Secretary of the Commonwealth William GalvinThis 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: