Under the golden dome: Where lawmakers stand on public records law

  • The Statehouse in Boston. The Statehouse in Boston.

Staff Writer
Published: 3/17/2019 11:13:50 PM

NORTHAMPTON — Massachusetts is the only state in the country where the governor’s office, the judiciary and Legislature all claim broad exemptions to public records law. For state agencies that are subject to the law, there are a large number of exemptions that allow for the withholding of information that in other states is available to the public.

The result is that, when it comes to public records access in Massachusetts, constituents have limited insights into the business of government in the state’s halls of power.  

“That’s too much secrecy,” Justin Silverman, the executive director of the New England First Amendment Coalition, said in written testimony to the Legislature in September. Silverman called it “an embarrassment” that all three branches of government in the commonwealth claim to be exempt from public records requests. “Accountability simply cannot exist where there is secrecy.”

Silverman was providing testimony to the Special Legislative Commission on Public Records, which was set up in 2016 when the Legislature updated aspects of the public records law. The idea in creating the commission was to tackle some of the issues that were not addressed in 2016, including the question of whether to extend public records law to the Legislature, judiciary and governor’s office.

But after two years, the commission failed to reach consensus on any recommendations. After missing a final deadline to make recommendations in December, the commission disbanded. It didn’t release a report, despite its mandate to explore new laws or rules.

“They couldn’t agree on what to do, and it was so disappointing,” Silverman told the Gazette this week. “At the end of the day, the commission threw up their hands.”

To illustrate the power that public records could have, Silverman pointed to the crisis in Flint, Michigan, where an unelected emergency manager — whom the governor appointed — switched the city’s drinking water source to the corrosive Flint River, causing lead to leach from old water pipes into the water supply. But Michigan also exempts the governor’s office from public records requests, so journalists haven’t been able to dig into what the governor may have known and when. Silverman said that ultimately there might not have been anything to see in the governor’s communications, but there’s no way to know when that branch of government is exempt from public records law.

“You just never know unless you have that transparency and that accountability there,” he said.

In Massachusetts, there was one set of recommendations that came out of that special legislative commission. The state senators who were members ended up filing their own report, recommending several changes; for example, making committee votes and written testimony public, and giving 72 hours notice before a hearing is held. Some of the senators’ recommendations ended up making it into the Senate’s rules for this session.

The senators’ report also includes testimony given to the special commission by a law professor — Lawrence Friedman of New England Law Boston — telling commission members that the state’s constitution allows for exempting the Legislature from public records law. Friedman also said that lawmakers could face constitutional questions by opening up the executive and judicial branches to public records requests because that “could be seen as interfering with the functioning of the executive and judicial departments.”

However, some transparency advocates do not agree with Friedman’s conclusion.

“I don’t buy that interpretation,” said Mary Connaughton, the director of government transparency for the right-leaning Pioneer Institute, a Boston think tank formerly headed by now-Gov. Charlie Baker. “I think it was an easy fix for them to include that in their report.”

Connaughton said that, contrary to Friedman’s analysis, her organization believes it is unconstitutional for the Legislature to claim exemption from the public record’s law.

“What that exemption does is it keeps the people from being able to exercise their rights established in the state’s constitution to be engaged in government and to participate in the democratic process,” Connaughton said.

The Gazette reached out to members of the local delegation on Beacon Hill to ask their opinions on the law, which many consider some of the weakest in the country.

All members of the local delegation pointed to the example of late state Rep. Peter Kocot, a Northampton Democrat who was one of the architects of the state’s 2016 overhaul of the public record’s law. The Massachusetts Newspaper Publishers Association honored him with its inaugural William L. Plante Jr. Open Government Award for his work.

Those updates to the law created designated point people at every institution to handle public records requests and included other improvements like the reimbursement of legal fees when a court rules that an agency inappropriately withheld records. But despite creating the Special Legislative Commission on Public Records, the exemption of all branches of government has yet to be updated.

One member of the Hampshire County delegation — State Sen. Donald Humason, R-Westfield — was a member of that commission, and one of the signatories to the senators’ list of recommendations. Humason’s district includes Easthampton and Southampton.

“I understand it’s rather frustrating,” Humason said about the commission’s failure to take action. When asked whether the Legislature should be open to public records requests, he pointed to the fact that government bodies in cities and towns are not exempt. “As a governing body, we should be no different than any other governing body.”

“There’s no James Bond secrets I see that we should be hiding,” he said.

Lawmakers’ views

Every member of the Hampshire County delegation contacted by the Gazette said they believe there are improvements to be made to legislative transparency. Many said the legislature should not be exempt. 

The Gazette asked the lawmakers about one area in particular: their communications. All stressed that certain emails with constituents containing personal information should not be made public. (There are already exemptions on the books to prevent that information from being released.) But regarding other communications, the lawmakers had varying answers.

“Our emails should be public record in the Statehouse, and they’re not,” said state Rep. Lindsay Sabadosa, D-Northampton, adding that opening up email communications would allow the public to see who has been lobbying lawmakers on any particular issue. “I reject the notion that the state Legislature should be exempt from that. That’s foolish.”

“I personally would have no problem with that,” said state Rep. Natalie Blais, D-Sunderland, when asked whether emails related to the deliberative process should be disclosed.

“I don’t think that we should be exempt,” said state Sen. Jo Comerford, D-Northampton.

Rep. Daniel Carey, D-Easthampton, said he would have “no problem” with opening communications about the crafting of legislation to public records requests. But when asked if he would support a bill lifting the Legislature’s exemption, he said, “I’d have to read it.”

State Rep. Mindy Domb, D-Amherst, said she considers her communications to be public records, and that she thinks people should be able to see any communications between lawmakers and those lobbying them. But on the question of whether to lift the Legislative exemption, she stressed that she is new to Beacon Hill and wants more information. 

“I would like to explore it,” Domb said.

State Sen. Eric Lesser, D-Longmeadow, said that while there needs to be transparency in decision-making, there also needs to be space for lawmakers to deliberate. He said there needs to be “a degree of confidentiality in the back-and-forth process,” so that people can give him unpolished advice.

“Decision makers need to be able to get advice from people, ask questions without fear that’s going to chill getting information that they need to make a final decision,” he said.

State Sen. Adam Hinds, D-Pittsfield shared similar thoughts. Before becoming a state senator, Hinds worked as part of negotiation teams with the United Nations, leading diplomatic talks as well as working to eliminate Syria’s chemical weapons program. He said that experience gives him pause when talking about completely opening up his communications to public records law.

“Having the conversation around tough issues — and moving people from their position to an agreement — often required some really outlandish ideas, some security in exploring ideas,” Hinds said, adding that he has also seen state senators come around to an idea because of their ability to have confidential conversations. “I have to admit, there have been instances in my first term where a progressive issue has been able to move forward because there was a trust that allowed them to explore ideas together in a safe space.”

When asked about corporate lobbyists’ influence on policy, Hinds suggested that a path toward greater public records access might be to allow communications with those “outside the building” — as opposed to legislative colleagues —  to become public.

Slow-moving progress

All of the lawmakers who spoke to the Gazette voiced support for continuing to enhance public transparency in the commonwealth and some blamed the slow-moving legislative process. Still, transparency advocates question why has it not happened yet.

“I think those in power are generally very reluctant to open themselves up to scrutiny,” said Silverman, of the New England First Amendment Coalition. “It’s a check on their power.”

Comerford said there are two factors at play: the human tendency to go along with the status quo, and the power of those who benefit from upholding it.

“The status quo is maintained by pretty significantly powerful interests that have been succeeding in the commonwealth under the current status quo,” she said. “They have a vested interest in maintaining it.”

Humason, the only Republican member of the local delegation, pointed to the state’s largely one-party Legislature as partly to blame.

“That may be one of the reasons why there hasn’t been more action toward moving toward a more transparent government,” he said, adding that constituents and the media need to pressure lawmakers to act on the issue.

Domb disputed Humason’s point: “It’s not exactly like the Republicans would be Mr. Sunshine,” she said, making a reference to “Sunshine Week,” an initiative meant to highlight the importance of transparency in government. 

Sabadosa said that if party leadership isn’t on board with any particular change, it tends not to happen. “Unfortunately, a lot of time these changes need to come from the top,” she said.

Hinds said that looking into what stalled the special commission could be a starting point for moving forward. “Were there any red flags we need to be digging into?” he asked.

For Connaughton, of the Pioneer Institute, the answer to that question often comes down to the fact that constituents do not realize how opaque state government can be. 

“I think that many people in the commonwealth do not yet know that the Legislature has exempted itself from these very important matters of transparency, and when people find out they are outraged,” she said. “More people need to know what’s really happening under the golden dome.” 

Dusty Christensen can be reached at dchristensen@gazettenet.com.


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