New England First Amendment Coalition

The Karen Read case shows why we need a shield law; plus, a State Police outrage, and Trump and the press

Massachusetts is one of eight states with the weakest level of protection for journalists’ confidential sources and materials

Prosecutors in the Karen Read murder trial are asking that a judge order Boston magazine to turn over unredacted audio recordings, notes and other materials stemming from a story about the case written by reporter Gretchen Voss that was published in September 2023.

The request raises some uncomfortable questions about freedom of the press. Kirsten Glavin, reporting for NBC10 Boston, writes that the magazine’s lawyer has argued previously that journalists have a right to protect off-the-record information. But that right — known as the journalist’s privilege — is tenuous in Massachusetts.

According to Glavin, Judge Beverly Cannone had previously granted access to audio of Read’s on-the-record interviews with Voss. Now the prosecution is seeking the full, unredacted recordings, which would include off-the-record statements by Read.

Michael Coyne, NBC10’s legal analyst, is quoted as saying that the prosecution’s strategy appears to be aimed at finding contradictions in what Read has said about the circumstances surrounding the death of her boyfriend, Boston police officer John O’Keefe. “The more information they gather, the more likely they’re going to start to uncover inconsistencies in the story and the like, and that’s all going to help them ultimately prove their case at trial,” Coyne said.

Read is accused of driving over O’Keefe while drunk and leaving him in a snowbank to die. She and her supporters contend that O’Keefe was beaten up in a nearby house and then dragged outside. Her first trial ended in a mistrial, and she is expected to be retried early next year.

The U.S. Supreme Court ruled in the 1972 case of Branzburg v. Hayes that the First Amendment does not provide for a journalist’s privilege and that reporters, like ordinary citizens, must provide testimony in court if ordered to do so.

At the state level, 49 states recognize some form of a journalist’s privilege, either through a shield law or judicial rulings. In Massachusetts, the privilege is based on the latter, as efforts to enact a shield law over the years have not gone anywhere. According to the Reporters Committee for Freedom of the Press, that places the Bay State among the eight states with the weakest protections for reporters seeking to guard their anonymous sources and off-the-record materials.

Not even shield laws provide absolute protection for the press. Nevertheless, such a law in Massachusetts is long overdue.

That will be $176k, please

In another case that raises concerns about freedom of the press in Massachusetts, Kerry Kavanaugh of Boston 25 News reports that the State Police have told the station it will have to fork over some $176,000 for records about the State Police Training Academy — and that’s just so the scandal-ridden agency can review those records to determine if they are public or not.

“Again, please note that the majority of the responsive records may be exempt in their entirety from disclosure,” the agency told her in a response to her public records request.

Kavanaugh, an investigative reporter and anchor for Boston 25, writes that the station began seeking the records following the sudden death of Enrique Delgado Garcia, a recruit who collapsed while taking part in a boxing match that was part of his training.

She also quoted Justin Silverman, executive director of the New England First Amendment Coalition, as saying:

We shouldn’t have to pay almost $200,000 to get this information. These are our tax dollars that are being spent on the state police training program. And we have a right to know whether or not that program is operating safely or whether it’s just teeing up another tragedy to occur somewhere down the road.

The state’s public records law is notoriously weak. In 2017, though, Gov. Charlies Baker signed into law a reform measure that, according to the ACLU of Massachusetts, “set clear limits on how much money government agencies can charge for public records.”

By demanding nearly $200,000 merely to screen its records to make its own determination as to whether they are public or not, the State Police may be in violation of that provision.

Kavanaugh writes that rather than paying the outrageous fee, her station is working with the State Police and has filed an appeal with the secretary of state’s office.

Journalism in the Age of Trump II

What will be the fate of journalism in the Age of Trump II? Poynter Online media columnist Tom Jones asked several folks (including me) what role the press played in Trump’s victory over Kamala Harris and what the next four years may look like. I think this observation from NPR TV critic Eric Deggans is especially on point:

The bubble of conservative-oriented media has distorted what many people even believe is fair news coverage and increased the amount of misinformation and disinformation in the public space. But I think one of the biggest problems facing mainstream news outlets now is the belief among nonconservative consumers that coverage of this election cycle let them down by “sanewashing” and normalizing Trump’s excesses. Traditional journalists who have already lost the confidence of conservative consumers are now facing diminishing trust from the news consumers who are left, which is not a great combination.

A Muzzle Award to Mass. POST for spurning data needed to track police misconduct

Photo (cc) 2015 by Tom Woodward. Digitally edited to remove license plate number.

In 2020, Massachusetts took what was billed as a major step forward in holding police officers accountable. Following the police murder of George Floyd in Minneapolis, the state created the Massachusetts Peace Officer Standards and Training (POST) Commission “to improve policing and enhance public confidence in law enforcement by implementing a fair process for mandatory certification, discipline, and training for all peace officers in the Commonwealth.”

But according to an investigation by the Boston Institute for Nonprofit Journalism, the POST Commission has not collected the employment data it needs to do its job. The story, by BINJ editorial director Chris Faraone and Sam Stecklow, an investigative journalist currently on a fellowship with the Pulitzer Prize-winning Invisible Institute of Chicago, found that Mass. POST and its director, Enrique Zuniga, made a series of decisions that experts say undermine the agency’s mission. Faraone and Stecklow write:

Despite passing regulations that instruct it otherwise, POST’s database does not include the full employment history of all of the officers that are going through the state’s recertification process — only for officers who have had discipline sustained against them. This prevents the press and public from analyzing data about what are often known as “wandering cops,” who transfer between departments after committing misconduct.

Employment history data are basic information that 27 other states around the country, including Vermont, have released to a national reporting project.

“It doesn’t make any sense that the previous employment of these officers wouldn’t be tracked and recorded if the ultimate goal was to prevent police misconduct from occurring,” Justin Silverman, executive director of the New England First Amendment Coalition,” is quoted as saying. “We’re only getting half the story without this information.”

Over the course of 3,500 words, Faraone and Stecklow go into great detail in explaining what data are missing and what the implications might be. As for the POST Commission, it has earned a New England Muzzle Award for only partially lifting the veil of secrecy that protects police officers who’ve been accused of misconduct.

The story, by the way, is the product of a partnership between BINJ and the Invisible Institute that Faraone explains here. Their investigation is being published not just by BINJ’s HorizonMass affiliate but also by The Shoestring in Western Massachusetts, Luke O’Neil’s Welcome to Hell World newsletter, and about a half-dozen hyperlocal weeklies and other publications.

And lest we overlook the mutual backscratching opportunities here, I’ve interviewed BINJ and HorizonMass co-founder Jason Pramas on “What Works,” our podcast about the future of local news, while Faraone and Stecklow give a shoutout to the Muzzle Awards in their article.

Plymouth official threatens reporter for recording a public, live-streamed meeting

On a Tuesday earlier this month, Fred Thys, a reporter for the Plymouth Independent, took a seat in the front row for that evening’s select board meeting and turned on his audio recorder — openly, and in plain view. You may remember Thys from his long career at WBUR Radio. Now he’s on staff at the Independent, one of the larger and better-funded nonprofit news startups that’s popped up in recent years.

Suddenly a member of the board interrupted the proceedings. As recounted by Independent editor and CEO Mark Pothier, that member, Kevin Canty, proceeded to inform those on hand that state law was being violated because an audio recording was being made without any advance notice being given. Although Canty did not call out Thys by name, Pothier wrote that Canty’s words appeared to be directed at the reporter as he told those in attendance:

There is a wiretapping statute that prohibits the discreet recording of even a public meeting by a private individual or member of the media that is punishable by up to five years in state prison, or two and a half years in jail. So if you are making any recording without making those in the room aware of that, I would encourage you to reconsider that particular stance.

Now, Canty was not 100% wrong, though he was more wrong than right, and his warning was certainly at odds with the interests of governmental transparency. Thus he has richly earned a New England Muzzle Award for attempting to interfere with a journalist who was simply trying to do his job.

Let’s count up the absurdities.

The proceedings were already being live-streamed on YouTube by the local public access operation and would be posted for posterity within a few days of the meeting.
Canty immediately reached for the state wiretapping law, which was sometimes used to stop citizen activists from recording police officers while performing their duties — but which, as Pothier observes, a federal appeals court ruled was a violation of the First Amendment.
If it bothered Canty so much, why he didn’t just take Thys aside at a break in the meeting and ask him to announce that he was recording at future meetings?

Justin Silverman, executive director of the New England First Amendment Coalition, told the Independent that “you have a meeting that’s being live streamed and recorded. Certainly, there’s no expectation of privacy here. One really needs to question what the intent was to make that threat of jail time. Was it to intimidate the journalist?”

But Canty, a lawyer, did have a thin reed to grasp onto. Under state law, anyone who plans to make an audio recording of an interview or a gathering needs to inform those present. At one time we all thought that the explicit permission of the party or parties being recorded was necessary, but that was clarified by the state’s Supreme Judicial Court in 2021. Still, you do have to say something.

When I asked Silverman about that, he replied by email that Thys should have notified the chair, although he was within his rights to record whether the chair liked it or not. “That said, I’m not aware of any penalty, if there is one, for not making the announcement,” Silverman said. “I’m also skeptical about whether this requirement would even apply in cases where the meeting is already being recorded by the town and live-streamed.”

Two other points of note.

First, when Canty made his public announcement, he said he was speaking on behalf of the town manager, Derek Brindisi, but Brindisi later suggested that Canty was exaggerating. Brindisi told Pothier that he let a couple of the select board members know that someone was recording and suggested they make an announcement. “So it was nothing other than that … You have to speak to Kevin about why he chose the words that he chose,” Brindisi said.

Canty, for his part, said his remarks were not grounded in any animus toward Thys or the Independent. “It’s just my general practice as a rule as a criminal defense attorney to discourage people from committing felonies,” he said.

Second, Thys said he’s been recording public meetings for years without making an announcement, and he had never run into trouble before. As it turns out, the meeting was covering was unusually fraught — the select board was removing a founding member of the Community Preservation Committee who had chaired it since it was established in 2002. If you can’t stand the heat, etc.

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A Muzzle Award goes to an R.I. city councilor who threw a critic out of the chambers

The Providence Journal’s Antonia Noori Farzan reported last month that a land transfer to Donna Travis, a member of the city council in Warwick, Rhode Island, had come under scrutiny, with the new leaders of a group that gave Travis the land raising questions about possible improprieties. Travis denied any wrongdoing.

It wasn’t the first time that Travis’ behavior had come under scrutiny. Back in 2017, she admitted she’d violated the state’s ethics code and paid a $1,200 fine. According to the Journal’s Carol Kozma, Travis’ case stemmed from her mixing her roles as a city official and as an executive at local nonprofit organizations. (I was able to access Farzan’s story through my USA Today subscription, but the process is convoluted and I don’t have a working link.)

🗽The New England Muzzles🗽

What brought this to my attention is what happened next. At a July 17 city council meeting, a Warwick resident named Rob Cote — identified by Rob Borkowski of the Warwick Post as a “frequent city critic” — was escorted out of the council chambers by a uniformed police officer after he had the temerity to wave a copy of the Journal at the council members and say, “First, I’d like to congratulate Councilwoman Donna Travis. Another front page of The Providence Journal.”

According to the Post and to a video of the proceedings rebroadcast on WPRI-TV (Channel 12), Travis immediately interjected that Cote would be thrown out if he failed to restrict his comments to matters involving city government.

Cote: “This is about city government.”

Travis: “Stick to a topic about city government or else you’ll be escorted out.”

Cote: “This is about city government. It’s actually mentioned about the Warwick City Council.”

Travis: “Did you hear what I just said?”

After telling Travis that the ACLU would hear about her attempts to squelch him, Cote was led out of the building. And sure enough, the ACLU of Rhode Island has gotten involved, writing a letter in conjunction with the New England First Amendment Coalition in which they “call upon the Council to reassure the public that this type of response will not be repeated and that residents will be free to speak at future meetings on matters involving city government without fear of being silenced.”

For her censorious efforts to shut down public discussion of an issue involving city government, Donna Travis has earned a New England Muzzle Award.

Now, let me tease out a few of the nuances here. As noted in the ACLU-NEFAC letter, signed by Steven Brown, executive editor of the ACLU of Rhode Island, and Justin Silverman, executive director of NEFAC, the city of Warwick imposes certain restrictions on members of the public who wish to speak at governmental meetings. One is that their comments pertain to issues “directly affecting city government.” But as the letter notes, Cote was shut down barely before he could get a word out, and, in any case, the property dispute involving Travis was “clearly a topic of public concern.”

In addition, the letter notes that Travis told the Warwick Beacon “it was the unwritten practice of the City Council not to allow ‘personal attacks’ during the public comment period.” Brown and Silverman respond that, “leaving aside the impropriety of relying on an ‘unwritten’ policy to censor the speech of a member of the public, any such policy itself is just as problematic from a First Amendment standpoint. In fact, courts have often struck down such restrictions as a violation of the public’s free speech rights.”

The other nuance I want to bring up is that the lack civility at local public meetings has become a real problem, making it difficult for elected officials to conduct business and driving some of them out of government. We’ve all seen televised school committee meetings at which out-of-control members of the public start screaming about critical race theory, transgender issues, vaccines or whatever. It can be difficult to know where to draw the line. Earlier this year, the Massachusetts Supreme Judicial Court ruled that local officials had gone too far in silencing a woman who twice called a select board chair “a Hitler.”

In the Warwick case, though, Cote comes across as polite, if sarcastic, and ready to talk about a matter of considerable public concern.

Travis might also consider the Streisand effect. Few people would know about the property dispute if she hadn’t tried to silence Cote. All around, it was a pretty sad performance by someone who was elected to act in the public’s best interest.

Correction: This post originally said that Travis was “led out of the building.” It was, of course, Cote.

Mike Donoghue leaves First Amendment group’s board after dispute over church work

Longtime Vermont journalist Mike Donoghue has resigned under pressure as vice president of the New England First Amendment Coalition’s board, according to Lola Duffert of the nonprofit news organization VTDigger. The issue was his ongoing involvement in helping the Roman Catholic Diocese of Burlington deal with issues of sexual abuse by priests.

Donoghue, who retired several years ago after a decades-long career at the Burlington Free Press, is a member of a lay committee appointed by the Catholic Church “to investigate the church’s personnel files and release the names of priests credibly accused of sexual abuse,” Duffert wrote.

Justin Silverman, the executive director of the New England First Amendment Coalition (NEFAC), told VTDigger that NEFAC was under the impression that Donoghue’s service on the church committee would wrap up in 2019. After it became clear that Donoghue had continued to work on church business, the NEFAC board concluded that Donoghue had to go.

Donoghue told VTDigger in a written statement that NEFAC misunderstood the committee’s purpose, saying it “was never given the job of determining what church records would be disclosed to the public.”

I’ve got all kinds of entangling alliances here. Donoghue is a friendly acquaintance who I interviewed for my book “The Return of the Moguls.” I’m also friendly with Silverman and NEFAC president Karen Bordeleau, a former editor of the Providence Journal, who — believe it or not — shared the same Northeastern co-op job with me at The Call of Woonsocket, Rhode Island, in the 1970s. I occasionally speak at NEFAC events.

In my experience, these are all smart, ethical journalists who are trying to do the right thing. Unfortuately, the difference in their perspectives proved to be too much to overcome.

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N.H. legislation would make it harder for the public to access police records

A bill filed in the New Hampshire legislature would make it more difficult for the public to access police records, reversing a recent decision by the state’s supreme court that requires greater openness. The New England First Amendment Coalition reports:

Senate Bill 39 intends to exempt police personnel files, internal investigations and other law enforcement records from the New Hampshire Right-to-Know Law.

If made law, the bill would overturn a New Hampshire Supreme Court decision — Seacoast Newspapers, Inc. v. City of Portsmouth — that ruled such documents were not categorically exempt under the public records statute.

Let the sun shine in: It’s time to end the legislative exemption to the state’s public records law

Previously published at WGBHNews.org.

It’s long past time to close a gaping loophole in the Massachusetts public records law: an exemption that allows the Legislature to conduct much of its business in secret. State agencies as well as cities and towns are required to turn over all manner of documents when members of the press and the public ask them to do so. Our elected lawmakers, though, operate under the cover of darkness.

With legislative business wrapping up during the next few weeks, it’s too late to expect anything to happen this year. But Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, said he expects bills aimed at rolling back at least part of the exemption to be filed next January. Unfortunately, he also expects those bills to die the same quick death that similar proposals have in previous years.

“The Legislature has no interest in changing the status quo,” Ambrogi said in an email. Justin Silverman, executive director of the New England First Amendment Coalition, added he was “fairly certain there is no appetite” on Beacon Hill for any serious effort at reform.

Spokespersons for the Legislature’s Democratic leaders, House Speaker Robert DeLeo and Senate President Karen Spilka, declined to comment.

What prompted this column was a tweet. Two weeks ago, WGBH News published the annual New England Muzzle Awards, which spotlight outrages against the First Amendment from across the region. Anthony Amore, a security expert who was the 2018 Republican candidate for secretary of state, posted on Twitter: “Somehow the Massachusetts Legislature and Robert DeLeo escaped notice despite the most glaring muzzle of them all, exempting themselves from public records requests.”

https://twitter.com/anthonymamore/status/1278765068096876545?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1278765068096876545%7Ctwgr%5E&ref_url=https%3A%2F%2Fwww.wgbh.org%2Fnews%2Fcommentary%2F2020%2F07%2F16%2Flet-the-sun-shine-in-its-time-to-end-the-legislative-exemption-to-the-states-public-records-law

Sadly, the exemption Amore was complaining about is hardly a shocker given the sorry state of open government in Massachusetts. According to a 2018 survey by the nonprofit investigative news project MuckRock, Massachusetts is just one of four states that do not subject their legislatures to public records laws. The others: Iowa, Minnesota and Oklahoma.

“In our state’s constitution, it says that the Legislature should be ‘at all times accountable to’ the people,” Mary Connaughton of the Pioneer Institute told MuckRock. “How can they be accountable if they are hiding behind closed doors or shielding their records from the people?”

MuckRock also pointed out that the four outliers are merely following the lead of Congress, which is exempt from the federal Freedom of Information Act. But that’s hardly an excuse. Let’s not forget that, in 2015, the Center for Public Integrity awarded Massachusetts an “F” for its miserable record of failing to provide public access to information.

The Legislature and Gov. Charlie Baker did approve an upgrade to the public records law in 2016. But though some progress was made in terms of fees and enforcement provisions, the loopholes remain. Indeed, not only is the Legislature exempt, but so is the judiciary. And a string of governors, including Baker, have claimed that they and their immediate staff also need not comply.

As Boston Globe investigative reporter Todd Wallack noted on Twitter earlier this week: “Massachusetts remains the only state where the courts, Legislature, and governor’s office all claim to be completely exempt from public records laws.”

Massachusetts remains the only state where the courts, Legislature, and governor's office all claim to be completely exempt from public records laws. https://t.co/ZbkKvQrEuo

— Todd Wallack (@TWallack) July 13, 2020

Ambrogi said that, during negotiations over the 2016 bill, it was made clear to reform advocates that their efforts would be derailed if they targeted the legislative and gubernatorial exemptions. The bill did create a special legislators-only commission to study further changes — but that effort, according to Ambrogi, has barely gotten off the ground.

In testimony before the commission nearly two years ago, Ambrogi said, a coalition of advocates called for removing the exemption for the governor and for modifying the exemptions for the Legislature and the courts. He emphasized that the advocates have not asked that the legislative exemption be repealed in its entirety. Rather, he said, “we proposed subjecting certain legislative records to the public records law, such as financial reports, bills and resolutions, journals, certain internal memoranda, internal manuals and policies, meeting minutes, and more.”

In a recent point-counterpoint feature in The Boston Globe, Lawrence Friedman, a professor at the New England School of Law, defended the legislative exemption. “It is not difficult to imagine state representatives and senators censoring themselves out of concern that their words might be taken out of context,” Friedman wrote. “Perspectives about proposed laws and their implications could go unshared and, therefore, unconsidered.”

Yet 46 state legislatures somehow manage to conduct business without such secrecy provisions. As Friedman’s sparring partner, Justin Silverman, argued, “These types of records are used by community watchdogs, journalists, and concerned citizens throughout the country to keep their legislators accountable.” Silverman added that with the COVID-19 pandemic reducing access to government officials, being able to obtain records is more important than ever.

If state agencies, city councils, school committees and select boards can comply with the law, then so, too, can our legislators — and our governor and our court system as well. The law already contains a number of common-sense exceptions for such matters as protecting the secrecy of contract negotiations and, when warranted, the privacy of government employees.

There are a number of clichés you could invoke here — sunshine is the best disinfectant, the government works for us, the public’s business should be conducted in public, and the like. The bottom line, though, is that democratic self-government is impossible if our elected officials are shielded from having to tell us what they are saying and doing on our behalf.

The moment has come to bring this outrage to an end.

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Open government in Mass. moves to closer to reality

The following is a press release from the ACLU of Massachusetts.

BOSTON—In a pair of unanimous, bipartisan votes, the state House of Representatives and Senate today passed the first major reform of Massachusetts public records law in four decades, sending it to Governor Charlie Baker, who has 10 days to sign, veto, or let it become law without his signature. If signed into law by Governor Baker, the legislation would address widely criticized weaknesses in Massachusetts public records law, which make it hard for citizens to get information about how their government functions.

“This is a great day for open government,” said Carol Rose, executive director of the ACLU of Massachusetts. “We thank the House and the Senate for making public records reform a priority and for getting the job done. We also call on Governor Baker to do the right thing and sign the bill as soon as it reaches his desk.”

The bill would:

Set clear limits on how much money government agencies can charge for public records;
Set reasonable time frames for responses to public records requests;
Allow municipalities to request additional time for compliance and the ability to charge higher fees to cover reasonable costs;
Strengthen enforcement of the law by giving courts the ability to award attorney fees to those wrongly denied access to public records.

The Massachusetts Freedom of Information Alliance—a coalition of open-government groups—praised the House and its leadership for making transparency a significant legislative priority. The coalition urged Governor Charlie Baker to sign the legislation without delay and usher in a new era of openness in Massachusetts state government.

“A strong public records law is critical to democracy and our ability as citizens to hold government accountable,” said Pam Wilmot, executive director of Common Cause Massachusetts. “With today’s vote, the House and the Senate made a significant commitment to transparency and freedom of information, improving open government, and moving our state a huge step forward from near last in the nation. This reform is long overdue and we hope the Governor will sign it without delay.”

In November, the Center for Public Integrity released a report that gave the Commonwealth an “F” grade on public access to government information for the second time in a row. Dozens of organizations have advocated for comprehensive public records law reform, arguing that the law is among the weakest in the country and needs updating for the digital age. State lawmakers made their last substantive amendment to the law in 1973.

“This bill represents a significant step forward for transparency in Massachusetts,” said Bob Ambrogi, executive director of the Massachusetts Newspaper Publishers Association. “It will do a lot to improve access to public records. We hope and expect Governor Baker will prove himself to be a transparency-minded Governor by signing it into law.”

“Massachusetts residents deserve a stronger public records law, and this bill offers many improvements. We look forward to the governor signing it into law and providing more opportunity to hold government officials accountable,” said Justin Silverman, executive director of the New England First Amendment Coalition.

The pending legislation advanced earlier in the week when a conference committee of six legislators reconciled earlier versions passed by the House and Senate. The bill passed by the House and Senate today includes provisions designed to reduce the cost of obtaining public records and ensure timely responses to information requests. In addition, by allowing courts to award attorney fees to those wrongly denied access to public information, the bill would bring Massachusetts into line with 47 other states. The new law would not make such fee awards mandatory, but would establish a presumption in favor of covering requesters’ legal costs when courts find the law has been violated. The bill also includes safety-valve mechanisms to enable municipalities to get extensions on compliance deadlines and to receive reasonable compensation when dealing with particularly complex, time-consuming requests.

The full bill, An Act to improve public records (now H.4333), can be found here: https://malegislature.gov/Document/Bill/189/House/H4333.pdf.

Guest commentary: Reform public-records law now

The following statement was released Monday by the Massachusetts Freedom of Information Alliance.

The Massachusetts Freedom of Information Alliance, a network of more than 40 groups committed to reforming the state public records law, today commended Gov. Charlie Baker for issuing guidance to improve state executive agencies’ handling of requests for information, but emphasized that significant changes to the law itself are still needed to achieve broad, enforceable access to public information throughout the Commonwealth.

Responding to widespread criticism that the Massachusetts public records law is among the weakest in the country and routinely flouted by public officials, Baker last Thursday issued a memorandum to cabinet secretaries providing guidance on how to “reduce delays and costs that burden accessibility.” The memo directs agencies to designate a records access officer to help streamline requests, to standardize fees for copying and staff time, and to set expectations for agency response time. The guidance applies only to state executive agencies, not municipalities, independent agencies, or other entities subject to the public records law.

MassFOIA commended the governor’s action but simultaneously called for legislative reform.

“We applaud Gov. Baker for providing leadership and direction to improve access to public information,” said Justin Silverman, executive director of the New England First Amendment Coalition. “But even the best-intended administrative guidance is inherently limited. It doesn’t have the force of law and it won’t have any impact on access at the municipal level.”

“The governor deserves credit for taking this step,” said Gavi Wolfe, legislative counsel at the ACLU of Massachusetts, “but we also need legislation to fix the law itself and ensure real accountability. Otherwise, Massachusetts will keep getting failing grades and officials will continue to treat freedom of information as a suggestion instead of a public right.”

Several of the provisions outlined in Baker’s memo may increase timely and affordable access, but they set no firm deadlines for complying with requests or overall limits on the amount of money that agencies can charge to provide information the public has a right to obtain.

“Even under this guidance, agencies can — and in all probability will — continue to charge a fortune for requests that they perceive as complex,” said Robert J. Ambrogi, executive director of the Massachusetts Newspaper Publishers Association. “Time and again we’ve seen Massachusetts agencies demand huge fees when other states turn over the same information for a fraction of the cost. While this guidance is a step in the right direction, it won’t prevent abuses of the law.”

“One of the most important reforms is attorney’s fees for those wrongly denied public records, and that cannot be established by the governor,” said Pam Wilmot, executive director of Common Cause Massachusetts. “That takes legislation. We’re pushing for a vote on a strong comprehensive bill in the legislature in September.” Forty-seven other states provide attorney’s fees to hold officials accountable when they refuse to follow the law.

The state public records law grants the public the right to access information about government operations from the executive branch and municipalities, subject to certain exemptions. MassFOIA contends that the law is weak and needs updating for the digital age, having not been substantially amended since 1973.

In July, the legislature’s Joint Committee on State Administration and Regulatory Oversight gave the nod to a bill supported by MassFOIA, which is now before the House Committee on Ways and Means. Key provisions would update the law to reflect advances in technology, rationalize fees for obtaining public records by having them reflect actual costs, and provide attorneys’ fees when agencies unlawfully block access to public information. It would also help government officials fielding public records requests by allowing them additional time for compliance and the ability to ask for other accommodations in “exceptional circumstances.” Legislative leaders have indicated a desire to vote on public records reform legislation in the fall.

The proposed legislation aims to improve access to information the law already defines as a public record. It would not alter the scope of the public records law or make any changes to existing exemptions, including those for personal privacy, criminal investigations, personnel records and trade secrets. Rather it would modernize outmoded language in the law and strengthen procedures for compliance and enforcement.

Specifically, the legislation would:

Promote access to records in electronic form.
Direct agencies to assign a “records access officer” to streamline responses to public records requests.
Lower costs for requesters and limit charges for redacting documents to withhold information.
Require attorneys’ fees when access to public records is wrongly denied, creating an incentive for agencies to obey the law.
Extend the time for compliance from 10 to 15 days.
Allow record-keepers to obtain more time or the ability to charge special fees when responding to frequent or unusually large requests.

Cities and towns seek to derail public-records reform

A serious attempt to reform the state’s broken public-records law — the shortcomings of which I described recently in the WGBH News Muzzle Awards — is on the verge of being derailed by the Massachusetts Municipal Association (MMA), according to advocates.

On Friday came word that the state Legislature was likely to pass the long-awaited reform bill, House 2772, according to The Boston Globe and State House News Service. The bill, though not perfect, includes key provisions to hit noncompliant government agencies with lawyers’ fees and to limit how much those agencies can charge for complying with public-records requests.

Now comes word that the municipal association, a lobbying group for the state’s cities and towns, is working to prevent final passage. Here is a statement sent out by the MMA in which the bill is denounced as an “unfunded mandate” that could be used to “harass” local officials.

The following is an email sent to me by Bob Ambrogi, executive director of the Massachusetts Newspaper Publishers Association.

Hi Folks,

It is do or die time for MassFOIA, because our public records bill, which was on the move, is now under aggressive attack.

As of yesterday, the plan was for a House vote on our public records bill next Weds, with a Senate vote the following week. Now, the MMA is fighting back with everything they have [a reference to the document linked above] and we need to do the same or the bill may be dead. In fact, it appears the House has cancelled their formal session for next week so our reform efforts are in mortal danger. If they kill the bill now, it will be all the more difficult to revive.

So, please:

1) Write to your members to get them to call or email their legislators. I’ve attached an email that Pam wrote to Common Cause members this morning. [Note: I have not included the attachment.]

2) Stay tuned as we develop materials over the weekend and early next week that you may need to sign onto — such as a coalition letter. We will need a quick turn around.

3) Keep your eyes open for updated talking points over the weekend.

Thanks for your support of this critical issue!

Best,

Gavi Wolfe, ACLU of Massachusetts
Pam Wilmot, Common Cause Massachusetts
Bob Ambrogi, MA Newspaper Publishers Association
Justin Silverman, New England First Amendment Coalition