Journalists, advocates back public-records reform

Journalists, political figures and others testified on Beacon Hill Tuesday in favor of legislation that would strengthen the state’s public-records law. Joshua Miller covers the story for The Boston Globe. In March, the School of Journalism faculty at Northeastern University called for public records reform. Below is a press release on Tuesday’s hearing from the New England First Amendment Coalition.

The New England First Amendment Coalition testified Tuesday in support of legislation that would improve access to public records in Massachusetts. Justin Silverman, NEFAC’s executive director, spoke to a state legislative committee on behalf of the coalition, describing a lack of access to records and a strong need for reform.

“The ability to gather news and inform communities, to understand government and engage with elected leaders, is essential to the democratic process,” Silverman said. “Yet in my role as executive director I regularly speak with journalists and community members from throughout the state who are frustrated at the inability to obtain information about their government, information that is public by law but in reality is unobtainable and essentially secret.”

The Joint Committee on State Administration and Regulatory Oversight provided the hearing to allow testimony on House Bill 2772 and Senate Bill 1676. The legislation would eliminate technological and administrative barriers to the enforcement of the public records statute. It would also update the law to reflect advances in technology, require state agencies to have a “point person” to handle records requests, reduce fees for obtaining public records, and provide attorneys’ fees when agencies unlawfully block access to public information.

“With this legislation, for example, the concerned father who is getting the runaround from school officials over policies affecting his children will have a designated point-person to help fulfill his request,” Silverman said. “That same parent won’t be charged hundreds of dollars in copying costs when electronic files of those policies exist. The journalist from a small suburban newspaper who successfully appealed a denial of records but still hasn’t received those records can use the attorneys’ fees provision to help find a lawyer to litigate on his behalf.”

NEFAC’s full testimony can be read here. More information on the legislation and the coalition’s work as a leading member of the Massachusetts Freedom of Information Alliance — a group formed specifically to advocate for public records reform — can be read here.

Arrest records and mug shots are not secret under state law

pyleBy Jeffrey J. Pyle

Thanks to The Boston Globe’s Todd Wallack, we learned last week that the supervisor of records, charged with enforcing the Massachusetts public records law, has permitted police departments withhold arrest reports and mug shots from the public in their “discretion.” Unsurprisingly, police departments have exercised that “discretion” to shield the identities of police officers arrested for drunken driving while publicizing the arrests of other Massachusetts residents for the same crime.

Yesterday, Secretary of State William Galvin took to Jim Braude’s “Greater Boston” show on WGBH-TV (Channel 2) to defend the rulings. He pointed out that he had previously ruled that arrest reports to be public, but said he had to back down because another agency, the Department of Criminal Justice Information Systems (DCJIS), told him the records are secret under the “criminal offender record information” (CORI) statute. Former attorney general Martha Coakley shared that view, Galvin said, and the new attorney general, Maura Healey, has tentatively agreed.

But are they correct? Does the law allow the police officers to decide which arrest reports do and do not get released? The answer, thankfully, is no.

First some quick background. The public records law creates a presumption that all government records are public. Only if a specific, listed exemption applies can the government withhold documents, and those exemptions are supposed to be construed narrowly. Galvin relies on the exemption for records “specifically or by necessary implication exempted from disclosure by statute,” here, the CORI law. The CORI law does impose certain limits on the disclosure of “criminal offender record information,” but it limits that term to information “recorded as the result of the initiation of criminal proceedings and any consequent proceedings related thereto.”

The word “initiation” is important. As late as 2010, Galvin’s office held the commonsense view that a “criminal proceeding” is initiated with the filing of a criminal complaint. Arrest reports and mug shots are generated before criminal complaints are filed, so they’re presumptively public. But in 2011, the DCJIS (which administers the state’s CORI database) told Galvin it believed “initiation of criminal proceedings” means “the point when a criminal investigation is sufficiently complete that the investigating officers take actions toward bringing a specific suspect to court.” That necessarily precedes arrest and booking, so all arrest reports and mug shots are covered by CORI. This “interpretation” is now contained in a DCJIS regulation. Another regulation says that police can release CORI information surrounding an investigation if they think it’s appropriate to do so.

In the common parlance, however, “criminal proceedings” occur in court, and they begin with the filing of a criminal charge. We don’t typically think of an arrest without charges as involving a “proceeding.” Galvin seems to agree — his office’s rulings have said only that DCJIS believes “initiation” occurs earlier — but he has thrown up his hands and deferred to this odd “interpretation” of the CORI statute.

The thing is, Galvin isn’t bound by what DCJIS says. The public records law says that the supervisor of records is entitled to determine “whether the record requested is public.” The DCJIS’s regulation adopting this view is irrelevant, too, because as noted above, the public records law only exempts documents “specifically or by necessary implication exempted from disclosure by statute.” The Supreme Judicial Court ruled in 1999 that the “statutory” exemption doesn’t extend to mere regulatory enactments “promulgated under statutory authority,” even “in close cooperation with the Legislature.” Despite this ruling, just Wednesday, Galvin’s office again refused to order state police officer mug shots to Wallack on the ground that “[b]y regulation,” — not statute — they are exempt CORI documents.

Wallack’s reporting has led us to a momentous Sunshine Week in Massachusetts. We’ve seen unusual, coordinated editorials in major Massachusetts newspapers condemning the rulings, a letter published in the Globe, the Boston Herald and GateHouse Media newspapers (including The Patriot Ledger of Quincy and The Herald News of Fall River) signed by members of the Northeastern Journalism School faculty, and extensive coverage on the normally neglected subject of government transparency.

To his credit, Galvin is calling for reforms to the public records law, and Attorney General Healey has vowed to work with his office to strengthen transparency. Reforms are sorely needed, especially to require shifting of attorneys’ fees if a requester successfully sues. But in the meantime, Galvin can and should reconsider his misguided rulings on arrest records.

Jeffrey J. Pyle is a partner at the Boston law firm of Prince Lobel Tye and a trial lawyer specializing in First Amendment and media law.

Northeastern j-school faculty calls for public-records reform

The state’s weak public-records law has long needed to be reformed. A lack of meaningful penalties for government agencies that refuse to turn over public records, outrageous fees and other problems make Massachusetts a laggard when it comes to transparency. Several years ago the State Integrity Investigation awarded Massachusetts a richly deserved “F” on public access to information.

Last week brought mind-boggling news from Todd Wallack of The Boston Globe, who reported that Secretary of State William Galvin’s office has issued rulings allowing certain formerly public records to be suppressed, including arrest reports of police officers charged with drunken driving. (Galvin later turned around and called for an initiative petition to put some teeth in the public-records law. Make of that what you will.)

Now the Globe, the Boston Herald and GateHouse Media Massachusetts have editorialized in favor of significant reform. The Massachusetts Freedom of Information Alliance, a group comprising the New England First Amendment Coalition, the ACLU of Massachusetts, the Massachusetts Newspaper Publishers Association and others, is calling for immediate action.

Seventeen of my colleagues and I at Northeastern’s School of Journalism lent our voices to the cause this week with a letter that has been published in the Globe, the Herald and (so far) two GateHouse papers: The Patriot Ledger of Quincy and The Herald News of Fall River. Because the Globe and the Herald were unable to run everyone’s names, I am posting them here. They include full-time as well as adjunct faculty:

  • Dan Kennedy, interim director
  • Chris Amico
  • Mike Beaudet
  • Nicholas Daniloff (emeritus)
  • Charles Fountain
  • Carlene Hempel
  • Joy Horowitz
  • Jeff Howe
  • William Kirtz
  • Dina Kraft
  • Jean McMillan Lang
  • Laurel Leff
  • Gladys McKie
  • Lincoln McKie
  • Bill Mitchell
  • Tinker Ready
  • James Ross
  • Alan Schroeder

This is Sunshine Week, an annual celebration of open government. In Massachusetts it’s time to let the sun shine in.

Globe seeks to force Patrick to turn over records

This is why large, well-funded news organizations still matter.

The Boston Globe reports that it has won a favorable court ruling in its three-year quest to obtain the names of people who have received large financial settlements from the state.

The administration of Gov. Deval Patrick, no friend of the state’s public-records law, had fought the request from the beginning — its defiance of a ruling by Secretary of State Bill Galvin’s office led the Globe to sue — and the governor may yet file an appeal.

At issue: “the names of 89 individuals who received settlements of $10,000 or more between January 2005 and March 2010.”

That’s our money. Good for the Globe for pushing to find out who got it and why.

How public should public gun records be?

Screen Shot 2012-12-27 at 10.54.07 AMThere is public information, and there is public information.

If someone makes publicly available data about sex offenders more readily accessible, that might help protect children. But it could also make it more difficult for offenders who have finished paying their debt to society to get on with their lives — theoretically increasing the risk that they will reoffend.

If the names and addresses of people who signed a petition in opposition to same-sex marriage are posted online, it may expose the tactics of anti-marriage activists who fooled people into thinking they were signing something else. But it could also expose sincere gay-marriage opponents to ridicule or worse for simply exercising their democratic rights.

It’s a discussion I’ve had with my students on several occasions, and now the dilemma has spread to guns. The Journal News, a Gannett paper that covers the affluent suburbs of Westchester County, N.Y., and beyond, has put together a map showing the names and addresses of people who hold permits for handguns, which it obtained through a Freedom of Information Act request.

“About 44,000 people in Westchester, Rockland and Putnam — one out of every 23 adults — are licensed to own a handgun,” writes Dwight R. Worley of The Journal News.

As with the examples I cited up top, this is public information. The Journal News has every legal right to do this. But it has prompted an outcry from gun owners and others who say the information ought to be private. One critic has responded by posting the names, home addresses and personal information of every Journal News employee he can find, reports Patrick Clark of The New York Observer.

Greg Mitchell has a detailed report at The Nation, and J. David Goodman recaps the story at The New York Times.

Personally, I’m not sure what to make of this. I’ve been trying to think of a journalistic or social good that has been accomplished by publishing this, and I’m having a hard time thinking of one. I guess if I had a neighbor who behaved erratically, I’d want to know if he might have a legally obtained gun. But that seems like a stretch.

Before The Journal News put together its map, the information fell into a gray area — public, yes, but not easily accessible. Is there a reason for some types of information to be public but also hard to get? Is there anything we can or should do about that in the age of the Internet?

When public information isn’t public

Many police departments in Central Massachusetts violate the law when asked to produce public police-log records, according to an investigation by the Worcester Sunday Telegram. Some flat-out refused. Others demanded identification in violation of the law, and three even went so far as to run a database check on the person requesting the records, the paper reports.

The law is clear,” the story begins. “Police departments must keep and update a daily log of their activities, reported crimes and arrests, and that log must be readily available to the public at no cost and with no questions asked.”

This interactive graphic provides a quick overview as to which police departments were in compliance and which weren’t.

Any of us who has worked in journalism knows that some police departments cooperate only with reporters they know and trust, despite the state public-records law, which requires them to produce records pertaining to incidents and people who’ve been arrested.

Police departments are not required to produce detailed incident reports about pending investigations.

Whenever I’ve sent students out to obtain police-log records, the results have been mixed. Boston Police, whose headquarters is a short walk from the Northeastern campus, was so accustomed to student requests that they’d form a virtual welcoming committee, giving them everything they needed before they were even asked. I eventually had to require that students visit other police departments — Boston was making it too easy.

But some police departments in Greater Boston were so uncooperative that my students were unable to complete the assignment unless they returned two or three times.

Media lawyer Jonathan Albano, a member of the board of directors of the Northeastern-affiliated New England First Amendment Coalition, tells the Telegram:

This shows why you need the public records law. People in those positions worry about if it’s all right or not to give someone this public information. After a while, they start to think of it as their information and that it’s their job to protect it.

The Telegram’s investigation also demonstrates the dangers of what happens when the police become a law unto themselves.

PolitiFact puts Hard Drive-gate to rest

Hard Drive-gate appears to have faded away. But in case you were still wondering whether former governor Mitt Romney and his staff did anything wrong by destroying most of their electronic records when Romney left office in January 2007, the Pulitzer Prize-winning news organization PolitiFact says “no.” Its ruling:

The Romney administration’s decision to erase most electronic files is neither illegal nor unusual. According to state records officials, past governors such as Weld, Cellucci and Swift have not made their electronic records available to the state archive or to the incoming administration, according to state staff. They have submitted some computer print-outs to the state archive, but Romney did that, as well.

PolitiFact is no fan of Romney. Page through its “Pants on Fire” section — that is, statements deemed to be outrageous lies — and you’ll find that Mitt is well-represented. But it seemed pretty clear from the beginning that criticizing Romney’s staff for not turning over non-public electronic records was ridiculous. And so it was.

About those non-public public records

It’s Day Two of Hard Drive-gate, and I’ve got a few questions.

As you may know, the Boston Globe reported yesterday that former Massachusetts governor Mitt Romney’s office let staffers buy their computer hard drives on their way out the door, and servers were scrubbed clean, meaning there are no email records from Romney’s time in office.

Anyway, here’s what I’d like answered:

  • The Globe reports that the emails are not public records, and would not be subject to a public-records request. Yet Secretary of State Bill Galvin says the emails nevertheless should have been turned over to him for filing in the state archives. Are there any circumstances under which the records could be made public? If not, isn’t this a story about nothing?
  • Why wasn’t this an issue in 2008, the first time Romney ran for president? Romney wasn’t some back-of-the-pack lightweight that year. He was the most credible alternative to John McCain. Did no one ask for this stuff back then?
  • Doesn’t Romney’s campaign have a point when it claims that the revelation may be a politically motivated attack by Gov. Deval Patrick? After all, it comes during the same week that Patrick slimed former attorney general Scott Harshbarger, the most prominent opponent of his cherished casino plan.
If Romney had destroyed public records that we had a right to see, that would be one thing. So far, though, it’s unclear whether the emails met any reasonable legal definition of public records.

Trust in government requires public access

During the weekend, more than 20 of the state’s daily newspapers, with support from the American Civil Liberties Union, Common Cause, the New England First Amendment Coalition at Northeastern University, the Massachusetts Newspaper Publishers Association and New England Newspaper & Press Association, published this editorial endorsing legislation to increase government transparency. A list of those newspapers can be found here. Media Nation is proud to lend its support.

The walls Beacon Hill has erected between itself and those it governs have taken on two dramatically different faces.

Outside, they show decades’ of wear at the hands of those fighting for better access to their government. Inside, they’re increasingly pocked with a taint that thrives in the absence of light.

That taint, most recently seen in a disturbing chain of high-profile corruption cases, suggests any benefits such barriers provide to the efficiency of lawmaking are grievously undermined by the efficiencies they also provide to those more interested in lawbreaking.

The felony convictions of three successive House speakers – and a Probation Department scandal that threatens to reach into every corner of public service – clearly indicate state transparency laws are in dire need of improvement.

Central to that effort is eliminating exemptions that free the governor’s office, Legislature and judiciary from having to live by the meeting and records laws that apply to every other public office in this state. Just as important is making it easier and more affordable for people to take advantage of the access already protected by a law that predates e-mail and the Internet.

It’s an area where minor advances have been made but substantive reform has been routinely killed or ignored.

Given recent scandals and polls showing a deep and growing distrust in government, we hope this year is different.

That notion will soon be tested on several fronts as lawmakers consider a number of initiatives.

One bill seeks to reduce the cost of obtaining records, requiring state agencies to make commonly sought public documents available electronically. It would also cut administrative costs and processing time associated with such records requests.

Another would strengthen the enforcement and investigatory powers of the Supervisor of Public Records.

A third would assess penalties against lawmakers who purposely skirt access laws and would cover the legal fees of those who successfully challenge them. And several seek to breach that battered and stained wall around Beacon Hill, subjecting the Legislature to the state’s Open Meeting Law.

Critics of the measures have focused on the financial and manpower burdens they impose on records keepers. Yet this push for more easily accessible records, already successfully implemented in other states, holds the promise of reducing those burdens.

House Speaker Robert DeLeo, following the June conviction of his predecessor, Salvatore DiMasi, vowed to regain voters’ faith in state government.

“Today’s news delivers a powerful blow to the public’s trust in government,” he wrote then. “One of the things that I find most disturbing – and the thing I am most committed to changing – is the public’s view of politicians and public sector employees.”

Fewer walls – legal, financial and technological – would go a long way toward that goal.

Photo (cc) by Andy Connolly via Wikimedia Commons.

In Wisconsin, a FOIA request too far

William Cronon

As a journalist, my inclination is to support public-records laws that guarantee maximum disclosure. As an ordinary citizen, it’s sometimes unclear to me exactly how far those laws ought to go.

You may have heard that Wisconsin Republicans have filed a Freedom of Information Act request to obtain private emails written by or to a history professor named William Cronon, whose blog has become a focal point in the battle over the rights of public-employee unions in that state.

Cronon may have to comply because he teaches at the University of Wisconsin in Madison, a state university and thus subject to Wisconsin’s strict public-records laws.

One strong argument against disclosure — and one invoked by Cronon himself — is the principle of academic freedom. That may well be how Cronon beats this, yet it strikes me as an easy way out. Why should a professor be exempt while, say, a $50,000-a-year career employee in the highway department is subject to having his private emails revealed in response to a FOIA request?

I should note that this does not affect me personally. Northeastern is a private university. But I don’t see why I should be safe from the long arm of FOIA while my colleagues at UMass are not.

Like Paul Krugman, I make some attempt to use my work email address for professional business and my personal address for everything else. But it’s mainly for my organizational benefit, and I’m not all that painstaking about keeping the two accounts separate.

I’m not sure what the answer is. It seems to me that some officials higher up the food chain ought to be subject to FOIA laws, but that ordinary employees should not. Of course, such officials’ correspondence with ordinary employees would be covered. But I shouldn’t be able to FOIA the email of anyone just because he or she happens to draw a government paycheck.