Following up on my WGBH News column about the legislative exemption to the state’s public records law, I want to call your attention to this excellent article (which predated mine) in CommonWealth Magazine by Colman Herman.
Herman took a look at the (slightly) improved public records law more than three years after it took effect — and what he found demonstrates the need to go back and reform the law root and branch. Among the lowlights:
Provisions aimed at toughening the penalties for compliance have been ineffective. Among the most egregious offenders are the State Police and the Boston Police, which, he writes, “take extraordinary measures to withhold documents in their entirety from public view.”
A provision that was supposed to make it easier for members of the press and the public to access public records without having to pay high fees has fallen short of that goal. Herman reports that when he asked for copies of disciplinary actions taken against massage therapists over a five-year period, “officials demanded $2,000 before it would turn over any records.”
Agencies regularly cite the multiple exemptions built into the law in order to deny access to such obviously public documents as MBTA General Manager Steve Poftak’s contract — which was turned over, Herman writes, but only after a considerable delay.
Turning enforcement over to Attorney General Maura Healey has had mixed results, with the attorney general’s office in some cases failing to uphold orders issued by the secretary of state’s office.
“The adages are many — information is the currency of democracy, sunlight is the best disinfectant, democracy depends on an informed citizenry,” Herman writes. “But in Massachusetts, these beliefs often still get shunted aside when it comes to accessing public records even under the new Public Records Law.”
Herman’s article is further evidence that open government in Massachusetts is more myth than reality.
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.”
Somehow the Massachusetts Legislature and Robert DeLeo escaped notice despite the most glaring muzzle of them all, exempting themselves from public records requests.
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
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.
The Boston Globe has dropped out of the legal battle for the Robert Kraft sex video, according to Deadspin. In a statement, the Globe said it no longer had any interest in obtaining the video since Florida authorities had backed off their original claim that human trafficking was involved. The statement said in part:
Authorities have now said the charges against Robert Kraft are not part of a human trafficking case. While we still have an interest in video from outside the spa, we’ve decided to focus our energy on the famously weak public records laws of Massachusetts.
Here’s the problem. Florida’s public records law is well-known for its all-encompassing nature, and that’s good for open government and a free press. Though it’s true that no one needs to see the video outside the criminal justice system, any chipping away of free press rights could have unanticipated negative effects somewhere down the road.
Bad move. Fortunately, about 20 other news organizations continue to seek the video.
Several years ago the Massachusetts Legislature strengthened the state’s public-records law — but it is still among the weakest in the country. Now a commission aimed at reforming the law still further has disbanded without producing any recommendations, according to Todd Wallack of The Boston Globe.
The law currently applies only to the state’s executive agencies as well as to records kept by cities and towns. The Legislature, the courts and the governor’s office are all exempt.
For the past several years, police departments in Massachusetts have been routinely denying the public access to “incident reports,” the written narratives of police responses to alleged crimes. Law enforcement agencies used to disclose these reports as a matter of course, sometimes redacting sensitive information. But now, every week, I and other media lawyers at my firm hear from reporters who are being denied basic information about such things as car accidents and drug arrests. The police withhold this information despite the strong presumption in our new, strengthened Public Records Act that all government documents must be made open for public inspection unless a specific exemption makes them confidential.
The damage this excessive secrecy poses to local journalism is well reported, but it’s not only the public’s right to know that can suffer. In some cases, the refusal to release incident reports can threaten the criminal justice system itself, potentially keeping innocent people behind bars and allowing dangerous criminals to remain free in the community. This problem is illustrated by the case of Frederick Clay, who was freed from prison this week after serving 38 years for a crime he did not commit.
Around 4 a.m. on the morning of Nov. 16, 1979, a taxicab pulled up to the Archdale Housing Project in the Roslindale neighborhood of Boston. Three young men exited the cab and then pulled the cab driver, Jeffrey Boyajian, out of the car and onto the ground. Witnesses claimed that two of the assailants were around 6 feet tall, and the other was shorter, about 5 feet 8 inches. All three were wearing dark clothing, possibly including black leather jackets. The men searched through Boyajian’s pockets and beat him as he cried, “Take what you want, but let me live.” After stepping away from Boyajian, the shorter man took out a handgun with his left hand and shot Boyajian five times. The attackers fled on foot.
The police subjected two of the witnesses of the morning’s events to hypnosis to try to help them identify a suspect — a practice that would soon (thankfully) be ruled unlawful. One of these witnesses didn’t see the attack at all — he just thought he’d seen the trio get into Boyajian’s cab earlier that night. The second, a young man with an intellectual disability, saw the attack from a second-story window. Neither witness was sure he could identify anyone before hypnosis, but after it — and after other procedures that would today be deemed too suggestive — both picked out Frederick Clay, age 16.
Clay insisted he was asleep in his room at a foster home on the night of the crime, and his foster mother corroborated his alibi at trial. Clay was also right-handed, not left-handed like the shooter. But the police figured they had their suspect. That’s why they failed to follow up on indications that two other Archdale residents — a left-handed 16-year-old who was 5 feet 8 inches and his much taller brother — may have been the real culprits. On Aug. 19, 1981, a jury convicted Clay of first degree murder, and he was sentenced to life in prison.
After years of fruitless appeals and post-conviction motions, Clay’s case came to the attention of attorneys Lisa Kavanaugh and Jeffrey Harris. Kavanaugh learned of the other suspect and his possible links to the crime, so she sent public records requests to the Boston Police for incident reports of his arrests around the time of the shooting. She was hoping to get mugshots of the suspect, details of his physical appearance, and other evidence showing that he matched the descriptions of the shooter, as well as information about his propensity to engage in robberies like the one that claimed Boyajian’s life.
The initial response of the Boston Police was a flat “no.” In a May 2015 letter, they told Kavanaugh that her request for the report of a 1985 arrest for assault and battery would be denied because she knew the names of the “parties involved” (she’d mentioned them in the requests to help the police identify the reports). and therefore their “privacy” could not be protected through redaction. Also, the police said, the report contained “investigatory material” (even though the investigation was long over) and “arrest information” that is “protected from disclosure” under the Criminal Offender Record Information (CORI) law.
These are the same justifications police departments are now using to deny access to police reports to the media, and they are wrong. As I’ve explained elsewhere, neither the “investigatory” exemption to the public records law nor the CORI statute permit the withholding of entire incident reports. Nonetheless, the Massachusetts State Police recently argued to the supervisor of records for the secretary of state’s office that it does not have an obligation even to try to redact police reports — it can instead withhold them in their entirety whenever they want. (There’s a reason the State Police won the Investigative Reporters & Editors 2015 “Golden Padlock Award,” a national recognition given to the most secretive government agency in the country.)
Kavanaugh didn’t take no for an answer. She asked me to intercede on her behalf with counsel for the Boston Police, and after much back and forth, including a threat of a lawsuit, the police agreed to produce reports for a number of incidents involving the other suspect from the 1980s — while still insisting on redacting his name (as if Kavanaugh didn’t already know it). Those reports led to other reports, and ultimately to a section of Kavanaugh’s and Harris’ masterful 75-page motion for a new trial that addressed the similarity of the other suspect’s appearance to descriptions of the Boyajian attacker and showed his propensity to commit similar crimes.
The Suffolk County DA’s office did its own investigation in response to Clay’s motion, and this past Tuesday — just one week before Clay was to be released on parole — the office assented to his motion and decided not to re-prosecute the case. The DA’s office did so in part because it agreed that the lead on the other suspect should have been pursued. In an emotional hearing in courtroom 906, Judge Christine Roach granted Clay’s motion, ordered his shackles removed, and declared him a free man — after serving 38 years in prison for a crime he did not commit.
The incident reports in Clay’s case played only a small part in his release, but they corroborated an important alternative theory of who may have committed a heinous murder. The Boston Police should be commended for reversing their initial determination and releasing the records. But the problem remains: Absent judicial or legislative intervention, police departments will continue to deny access to incident reports for no good reason, regardless of whether they may shed light on an unsolved case, reveal important trends in law enforcement, or possibly free an innocent person. For the sake of the criminal justice system and the public’s right to know, that practice must end — and soon.
Jeffrey J. Pyle is a partner in the Media and First Amendment Law group at Prince Lobel Tye, LLP, in Boston.
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.
Our journalism students at Northeastern made a big splash over the weekend. Professor Mike Beaudet’s investigative reporting class partnered with The Boston Globe and WCVB-TV (Channel 5) to produce a story showing that the majority of the state’s 351 cities and towns failed to respond to public records requests.
Here is the Globe version of the story, written by staff reporter Todd Wallack. Here is the WCVB version, helmed by Beaudet, who was recently hired as an investigative reporter at the station.
Despite an intense focus on the state’s extraordinarily weak public records law (here is a letter written earlier this year by the Northeastern School of Journalism faculty and published by the Globe, the Boston Herald, and GateHouse Media community newspapers), 2015 is drawing to a close with the Massachusetts House having passed an inadequate reform bill and the Senate not having acted at all.
Let’s hope that in early 2016 the Senate fixes what the House got wrong. And congratulations to our students on a great job.
Judging from the tone of coverage, it’s hard to tell whether the Massachusetts House’s unanimous approval of public-records reform legislation Wednesday was a step forward or a setback. But it sounds like the already-watery bill under consideration has been diluted still further.
The problem is that even though Massachusetts’ public-records law is among the worst in the country (the Center for Public Integrity recently gave the state an “F” for public access to information), the bill passed by the House both giveth and taketh away. Here’s Wallack:
The legislation includes a measure designed to reduce the fees for copies. It orders government agencies to publicly designate someone to handle public records requests, and it gives citizens the opportunity to potentially recoup their legal fees if they successfully sue to obtain records….
But the bill also gives agencies significantly more time to respond to requests, allows them to outsource some requests to vendors, and did not go as far as some advocates had hoped to rein in labor charges and penalize officials who flout the law.
The bill also continues to exempt the governor’s office, the judiciary and the Legislature itself from the provisions of the law. A commission is going to study that — although, needless to say, it would be a major surprise if we ever heard about it again.
The only hope now is that the Senate will strengthen the legislation when it comes up for consideration early next year. The danger is that Gov. Charlie Baker will sign a weak bill into law, officials will pat themselves on the back for a job well done, and meaningful reform will be put off for another generation.
Remember those golden days of last spring, when it looked like the Massachusetts Legislature might actually take some steps to fix the state’s broken public-records law? The effort was derailed, unfortunately, as opponents — including the Massachusetts Municipal Association, a lobbying organization for the state’s 351 cities and towns — argued that the proposed changes amounted to an unfunded mandate.
The Patriot Ledger of Quincy, among the largest of GateHouse Media’s more than 100 community newspapers in Eastern Massachusetts, had this to say in an editorial posted over the weekend:
If there are good arguments against making public records more easily available to the public, let’s bring them out of the legislators’ private offices and debate them on the floor of the House and the Senate. It’s time legislative leaders keep their promises and bring public records reform up for a vote.
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.