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

Photo via Good Free Photos.

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.”

 

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.”

 

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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More reasons for Jerry Remy to disappear

Having trashed my WGBH colleague Margery Eagan for daring to write about his family, will Jerry Remy now go after Massachusetts House Speaker Robert DeLeo? Take the year off, Jerry. The Red Sox are entertainment — fun and games. At this point, you’re pretty much the opposite of that.

And here’s an excellent commentary by Marjorie Arons-Barron on “the ick factor” Remy now brings to Red Sox broadcasts.

Getting more than he’s betting on

Writing in the Boston Globe, Paul McMorrow raises an important point about Massachusetts House Speaker Robert DeLeo’s quest to build two casinos and install slot machines at four racetracks.

Right now, the Mashpee Wampanoag bid to build a casino in Middleborough is being stymied mainly because casino gambling is illegal in Massachusetts. Once it’s legalized, the door is open not just for the Middleborough location, but for other tribal casinos as well. McMorrow writes:

In DeLeo’s rush to appease the building trades and carve out some action for the two racetracks in his district, the speaker of the House is setting the table for a gambling expansion in Massachusetts that has the potential to be far broader than anything he’s pitching. He’s opening the door to new gambling halls on Martha’s Vineyard and the Cape, in Middleborough and Fall River. It’s also something neither he, nor anyone else on Beacon Hill, can control.

And though McMorrow doesn’t say it, you can be sure that officials in New Hampshire, Rhode Island and Connecticut won’t stand pat if casinos are built in Massachusetts.

It is sad that none of the major candidates for governor — not Gov. Deval Patrick, Republican Charlie Baker nor independent Tim Cahill — opposes this financial and social boondoggle-in-the-making.

Profile in cowardice

CommonWealth Magazine’s Michael Jonas considers the sad case of state Rep. Ellen Story, an Amherst Democrat who candidly admits she reversed her longstanding opposition to casino gambling in order to please House Speaker Robert DeLeo.

Controlling the casino-gambling narrative

House Speaker Robert DeLeo and Senate president Therese Murray

CommonWealth Magazine’s Michael Jonas says that Massachusetts House Speaker Robert DeLeo, by focusing on the jobs that casino gambling would bring, is trying to control the narrative in a way that is not in accord with reality. (Boston Globe story on DeLeo’s proposal for two casinos and four racinos.) Jonas writes:

The battle over casinos is always a battle to control the narrative. If the narrative stays focused on jobs and putting people who are hurting and in real economic distress back to work, proponents win. If it’s about predatory gambling and the state partnering up with rich casino moguls to pick the pockets of the lower-income residents who will disproportionately be the ones dumping their paychecks into the slots DeLeo wants installed at the state’s four racetracks (two of which are in his Winthrop-based district), the prospects could get, well, dicey.

Jonas observes that compulsive-gambling rates double in areas where casinos are located — and that problem gambling isn’t just an unfortunate byproduct of casino (and racino) gambling, but part of the business model.

The great Gladys Kravitz surveys the landscape as well, and pronounces DeLeo’s speech yesterday to be a “trifecta”: (1) experts are already saying the racinos DeLeo envisons will have to grow into casinos in order to survive; (2) New Hampshire and Rhode Island officials responded by reviving their own casino plans; and (3) the Mashpee Wampanoag tribe’s fading hopes of building a casino in Middleborough got a jolt of life.

It’s an absolutely miserable situation. DeLeo, Gov. Deval Patrick and Senate president Therese Murray are all on record as supporting casinos. Patrick’s most plausible opponents in the governor’s race, Republican Charlie Baker and independent Tim Cahill, are pro-gambling as well.

United to Stop Slots in Massachusetts is where you can find out everything worth knowing about casinos and slot machines.

Photo (cc) allegedly by Martha Coakley, although I doubt she took it, and republished here under a Creative Commons license. Some rights reserved.

A casino analyst’s conflict of interest

Nearly two years ago Phil Primack, writing in CommonWealth Magazine, exposed the flaws behind casino analyst Clyde Barrow’s rosy numbers. Primack explained that the UMass Dartmouth professor’s methodology consisted essentially of visiting the parking lots at Connecticut casinos and counting Massachusetts license plates. Very scientific.

Now the Boston Herald’s Jay Fitzgerald reports that Barrow is working as a paid consultant for a casino operator who wants to build in Hudson, N.H. “It’s really not much,” Barrow protests to Fitzgerald. Well, we all have to buy groceries.

At the same time, the long-dead Middleborough casino plan is showing signs of life, as federal legislation has been filed that could conceivably put the Mashpee Wampanoag tribe’s proposal back on track.

With Gov. Deval Patrick, Senate President Therese Murray and House Speaker Robert DeLeo all on board for expanded gambling, these are dangerous times for those trying to save Massachusetts from the social ills that casinos would bring.

Just wondering

What is it that House Speaker Robert DeLeo and Senate President Therese Murray like best about gambling casinos?

Is it the social dysfunction they help foster, including crime, suicide and bankruptcies? Or the fact that the promised revenues are an illusion, as the industry is in freefall thanks largely to oversaturation? (See recent reports by the New York Times and the Boston Globe.)

Casino opponents gave up a long time ago on Murray and Gov. Deval Patrick. It’s sad to see DeLeo joining them. Oh, where have you gone, Sal DiMasi?

The folly of casino gambling

There’s a terrific front-page story in today’s New York Times on the sagging fortunes of the casino-gambling industry. Ian Urbina reports that casinos may well be reaching the saturation point, as more and more are chasing the same number of customers.

In New Jersey, legislators have repealed no-smoking regulations in order to entice gamblers. In Illinois, there’s actually a proposal to keep gamblers liquored up with free drinks so they’ll keep blowing their money.

Urbina writes:

“When budgets get tight, expanding gambling always looks to lawmakers like the perfect quick-fix solution,” said John Kindt, a professor of business and legal policy at the University of Illinois who studies the impact of state-sponsored gambling. “But in the end, it so often proves to be neither quick nor a fix.”

Crime jumps 10 percent in areas with casinos, personal bankruptcies soar 18 percent to 42 percent and the number of new gambling addicts doubles, Mr. Kindt said. Predicted state revenue often falls short and plans frequently get tripped up by legal fights or popular opposition, he said.

With Gov. Deval Patrick, House Speaker Robert DeLeo and Senate president Therese “Ka-ching!” Murray expected to make a renewed push for expanded gambling this fall, the Times story is as timely as it is important.

Crime, bankruptcies, addiction — is this what our state leaders want?

Business as usual on Beacon Hill

Sharp commentary today from Jon Keller and the Outraged Liberal on the near-certain prospect that the Legislature will raise the sales tax by 25 percent.

As I’ve said before, we probably need a significant tax hike. Since the late 1980s, there’s been a disconnect between our demand for spending (mainly in the form of local aid) and our willingness to pay for it.

But to move ahead on a major boost in the sales tax (from 5 percent to 6.25 percent) without making some real changes in the government pension system, and without insisting that public employees make the same kind of sacrifices in salary and health benefits that private-sector workers are making, is unconscionable.

It’s also business as usual.

House Speaker Robert DeLeo, in a recent op-ed piece in the Boston Globe, argued that the Legislature is on the way to reforming the way it does business. I hope that’s the case.

On the other hand, we all know that when the pressure is off, people tend to slide back into their old habits.

This is a great opportunity for Gov. Deval Patrick. Let’s hope he can rise to the occasion.

Gitell moves on, suspends Gitell.com

Gitell.com (left) and Media Nation at
Seth’s 40th birthday party, November 2008

I’ve been holding off until it became official, but now it can be told. House Speaker Robert DeLeo has named friend of Media Nation Seth Gitell as his director of communications. DeLeo’s gain is our loss — Seth explains why he’s giving up his widely read blog, in which he expertly covered everything from politics to food.

Seth may be best known as Mayor Tom Menino’s former spokesman, but before that we were colleagues at the Boston Phoenix. Here’s my account of our last road trip — a Rudy Giuliani event in Durham, N.H., in December 2007, which Seth covered for the now-defunct New York Sun and I covered for the Guardian.

Good luck, Seth. And here’s an excellent Web site you can bookmark for your new boss.