Getting Answers: Mass. public records law criticized for lack of transparency

Some national rankings list Massachusetts among one of the least transparent states in the nation when it comes to the state’s public records law.
Published: Nov. 14, 2022 at 5:55 PM EST|Updated: Nov. 14, 2022 at 10:32 PM EST
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SPRINGFIELD, MA (WGGB/WSHM) - Some national rankings list Massachusetts among one of the least transparent states in the nation when it comes to the state’s public records law, which experts said is written in a way that makes it challenging and sometimes impossible for people in the Bay State to get information about their towns, cities, and state agencies.

“We have this reputation of being this great liberal state, a lot of transparency, but that’s just not the case. In fact, we are the only state in the country that has the governor’s office, the judiciary, and the legislature exempt, or claiming to be exempt, from the public records law,” said Justin Silverman, executive director of the New England First Amendment Coalition.

Silverman said the state’s lack of transparency starts at the top with exemptions to the public records law put in place by lawmakers to shield themselves from oversight.

“Bad decisions and lawbreaking tend to fester in places where there’s no sunshine,” said Jeff Pyle, a first amendment and partner with Prince Lobel Tye.

Pyle said with all three branches exempt from disclosure, it sets a bad precedent for local governments.

“Under the law as it exists now, there’s very little reason, there’s really very little downside for an agency or municipality to simply ignore the law,” Pyle added.

Pyle said when someone files a public records request seeking information about their local government or state agency, they often face roadblocks. A request can be flat out ignored or denied based on certain exemptions. For example, when Western Mass News wanted to learn more about an alleged teacher-student relationship, Springfield Public Schools denied us access to employee discipline and dismissal files under the law’s personnel exemption, which serves to protect individuals’ privacy, but which Silverman said is often abused.

“Oftentimes, what we’re seeing is that these exemptions can be overused. They can be misapplied, they can be abused, they can be used as a way to shield the public’s view of what’s going on in government,” Silverman explained.

When a city or agency refuses to hand over the records, the requester can then appeal to the supervisor of records, who’s appointed by the Massachusetts Secretary of State.

“The supervisor of records doesn’t have any enforcement authority. All she can do is order the government entity saying, ‘Hey, respond to this request.’ If they don’t, the supervisor of records can’t do anything about it,” Pyle explained.

That, both experts agree, is the law’s biggest failure: a lack of enforcement.

“The only recourse you have as a member of the public is either hope the secretary of state’s office may refer this to the A.G.’s office to pursue in court, which rarely happens, or bring a lawsuit on your own,” Silverman noted.

The Massachusetts Secretary of State’s office has only referred 40 public records cases to the attorney general’s office since 2016, including three this year. According to the attorney general’s office, in 16 cases, enforcement led to the records being produced and five resulted in litigation. In eight cases, the A.G. took enforcement requiring the custodian to include a more comprehensive explanation for the clarified exemption and four cases are still pending.

Massachusetts Secretary of State William Galvin is the chief public information officer for the Commonwealth, so we took our questions on transparency to the State House.

“Very often, these are local governments that are refusing to do this and they have particular impacts on the individual citizen who is requesting it, whether their child is in the school system or tax assessments, or development decisions and they may not have the resources to do that. They shouldn’t be deprived of those records. They should be able to get them and the state should be there to enforce it directly. There needs to be strengthening of that law, I think,” Galvin explained.

Galvin said transparency has improved since 2016 with new reforms, including a provision that allows attorneys to recoup their fees if they win a public records lawsuit.

“That was a real breakthrough because what it says is if you are an agency or a bureaucracy and you’re going to take that position, you’re going to do so at some peril,” Galvin said.

However, Pyle said even with this reform, filing a lawsuit is beyond the reach of many. It can be time-consuming and costly and if you don’t win, “then they don’t get any award at all and they can be out $100,000, $200,000 for three years of litigation for nothing.”

Galvin acknowledged that this reform helps, but is not a solution. He said they now have a compliance officer who encourages agencies to provide the information they’ve been ordered to and negotiates between the agency and the requester to find a balance.

“We do think because of the changes in the law and the changes in administration that my office has made, we’re doing a much better job. This year alone, we’re on track for 3,000 decisions to be issued by my office,” Galvin added.

Galvin’s office said they do not track how many of those 3,000 decisions sided with the individual seeking the public records. Silverman agreed that there has been progress, but even so, without enforcement of the public records law, there’s ultimately no government accountability.

“It’s really going to be a detriment to the public because we’re going to be working with secrecy and not transparency and we’re going to be left guessing what’s going on in those dark corners of the government,” Silverman said.