THE SECRETARY OF SECRECY, PART III

Testimony from state’s agency that oversees the public records law shows how little they care about the public’s access to records

Note: This column was written prior to the Legislature unveiling the final draft of the public records bill, which the House is slated to take up on Wednesday. However, the arguments in it are still worth discussing. In fact, the Legislature failed to adopt two of the three reforms discussed in the column, which underscores how disappointing it is that the Secretary of the Commonwealth’s office and Attorney General’s office did not campaign for tougher enforcement measures. Both mandatory referrals to the AGO and mandatory attorney’s fees were scrapped.

For months, government transparency advocates have waited patiently as a joint committee of state senators and representatives work out a final bill to update our state’s outdated public records law, which is one of the weakest in the country. While the committee has attempted to iron out the differences between the House and Senate bills, it has heard testimony from many members of the public and other stakeholders, including the Secretary of the Commonwealth’s office. Secretary William Galvin oversees the records law and is responsible for ensuring that the public has access to government records, but his office testified against the three most important proposed reforms.

Galvin’s office opposes requirement to do its job

One of the most important proposed reforms is to mandate that Galvin’s office refers cases of agencies refusing to comply with the public records law to the attorney general’s office. Under the current law, responsibility for enforcement is split between the two agencies. If an agency refuses to comply with a records request, a requester can file an appeal with Galvin’s office, then Galvin’s office will issue a ruling. If the agency does not comply with the ruling, Galvin’s office has the discretion to refer the matter to the AGO, which has the power to sue the agency or file criminal charges.

Galvin’s office opposes making referrals mandatory, but did not provide much of an explanation in its testimony, which merely states that leaving the office with “discretion … is preferred to allow the [supervisor of records] the necessary flexibility when seeking enforcement of orders.” But it seems the real reason Galvin’s office opposes this change is that it wants to maintain a status quo in which the public records law isn’t enforced.

Galvin almost never refers orders to the AGO. His office actually stopped doing so entirely for about five years when Martha Coakley was attorney general. Since Maura Healey took office last year, Galvin’s office has only referred a single order. Galvin has complained that past attorneys general have often disagreed with his office’s interpretation of the law and refused to act on the referrals. But Galvin gave up his right to complain when his office joined the AGO in shirking its responsibilities. Since his office has abused its discretion by simply choosing to not do its job, taking that discretion away has become a necessary step towards making the system work in the future.

Galvin’s office opposes real deadlines for turning over records

Under the current system, there is no accountability for agencies that do not respond to records requests or turn over records in a timely manner—or even for agencies that refuse to respond at all. If an agency does not provide a response in 10 days, you can file an appeal with Galvin’s office. It can take several weeks or even months for it to issue a ruling. When it does, it actually provides the agency an extra 10 days to provide a response rather than ordering the agency to provide a response or turn over the records immediately. As we explained earlier, if the agency refuses to comply, Galvin’s office won’t refer the matter to the AGO, so the requester will be out of luck.

One idea proposed in the Senate bill to help fix this problem is not allowing agencies to charge fees if they fail to respond to requests or turn over records in a timely manner. Galvin’s office is opposed to this reform: “[I]f a town, in good faith, responds to a highly complicated response [sic] that is estimated to cost $1000 in 16 calendar days rather than 15 they would be prohibited from recouping any costs associated with the provision of records. It seems to either encourage records access officers to rush through a response or play it safe and request a time extension even when it actually may be unnecessary.”

This complaint shows Galvin’s office did not care to review the bills thoroughly enough to understand them before testifying. The Senate bill requires that agencies provide a response in 10 days, not 15 (which is the amount of time the agency would have to turn over records). This hypothetical town would be six days late in providing a response, not one. Furthermore, there’s no need for agencies to “rush” on providing responses because they already only have 10 days to provide a response under the current law; nothing extra is being asked of them.

Lastly, the concerns about agencies seeking to extend their time to respond are also unwarranted, because both bills would only allow agencies to request extensions on furnishing records, not providing responses. An argument Galvin’s office might have made if it understood the Senate bill is that it provides an incentive for agencies to improperly grant themselves 30 days to furnish records instead of 15. The bill allows agencies to do this without seeking a formal extension, but let’s be realistic—agencies will always drag their feet for as long as they can, something anyone who makes records requests in Massachusetts can attest to.

The testimony from Galvin’s office cuts to the heart of how Massachusetts has become one of the worst states for public access to records: The people tasked with enforcing the law don't take it seriously and refuse to enforce it. Galvin’s office is tasked with upholding the law, but instead trumpets the notion that agencies can act “in good faith” while violating the law and therefore shouldn’t face any consequences for doing so.

Galvin's office opposes mandatory attorney fees

Another major reform in both bills is providing attorney’s fees to people who successfully sue agencies over public records access. Unlike 47 other states, successful litigants are never awarded attorney’s fees under the current law. Hiring a lawyer for one of these suits can cost tens of thousands of dollars or more, which means suing is unrealistic for most people, even in slam dunk cases.

The Senate bill would mandate that judges award attorney’s fees, with several exceptions; even if any of the exceptions existed, judges would still have the discretion to award fees. The House bill would leave the awarding of attorney’s fees completely up to judicial discretion. Galvin’s office said it has “[n]o strong preference,” but prefers the House version. The rationale given is that “the House version grants the court more discretion to determine whether the awarding of attorney fees and costs to the requestor is in the best interest of the taxpayers, who will ultimately be required to pay these fees and costs.”

Any money the taxpayers spend on paying attorney’s fees in these lawsuits will be money better spent than funding Galvin’s do-nothing office. The whole point of updating the law is to provide enforcement, and since Galvin and the AGO have shown they have no interest in making the system work, the most important reform is giving the public a more realistic way of enforcing the law without their help. Every step away from mandatory fees toward discretionary fees makes lawsuits more of a gamble, which defeats their purpose by making them less feasible.

The point of awarding attorney’s fees isn’t necessarily to increase the number of lawsuits that are actually filed, but rather to change the incentive structure so that agencies will follow the law. If agencies face a significant likelihood of being sued when they break the law, it will give them more of an incentive to just comply in the first place to avoid being dragged into court.

BONUS: The AGO’s testimony

We also obtained testimony from the AGO, but decided it wasn’t worth writing a whole story about. That’s because unlike the testimony from the Secretary of the Commonwealth’s office, which discussed specifics, the AGO’s testimony was full of nothing but platitudes. The testimony states that the AGO “believe[s] that the reform efforts undertaken by the House and Senate will ensure that members of the public will continue to have access to a responsive, open government.” However, it fails to acknowledge the many differences between the bills or to explain which versions of the various provisions the AGO prefers. Most notably, the testimony made no mention of the proposed reform to require Galvin’s office to refer violations of the law to the AGO. It’s pretty clear that Healey, the state’s other enforcement arm of the records law, put little thought into the testimony, which isn’t surprising since she’s shown almost no interest whatsoever in enforcing the law during her tenure thus far.