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Exceptions To The State's Public Records Laws

Door Is Cracked Open, A Little, On State Public Records Laws

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The Massachusetts State House.
Paris Alston/WGBH News
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Exceptions To The State's Public Records Laws

Back in 2015, John Ribeiro was one of a vocal group of citizens fighting a proposed casino in East Boston. He'd heard about a traffic study on the casino commissioned by the state Legislature — a study no one in the public had seen.

“We just wanted to get a copy of that study that had been presented,” recalled Ribeiro. "We couldn't put our hands on it."

So he and some fellow activists filed a public records request. After all, a study commissioned by public officials with public money to inform the public decisions those public officials would make … well that study should be public, right?

But the public records request was denied. Ribeiro read the response as, “You can’t force us to give it you.”

And it turned out he had run up against one of the big exceptions to the state's public records laws, which require records, even emails of public officials be made available to the public.

That law doesn't apply to the state Legislature — as in, the entire 200-member body and everyone who works for it. The governor's office is also exempt.

Ribeiro eventually filed a ballot initiative to end that exemption. But the initiative was thrown out after attorney general Maura Healey ruled that it didn’t meet certification requirements requiring ballot initiatives to comply with the state Constitution.

“The Constitution allows the Legislature to make their own rules,” Ribeiro summed up. “And so, incredible as it sounds, those rules can include what would appear to be, you know, violating the public records law.”

Some powerful groups, including the Pioneer Institute, a conservative-leaning public policy group in Massachusetts, agree that lawmakers have it backwards.

“We believe that the Legislature's exemption from public records law is unconstitutional,” said Mary Connaughton, director of Government Transparency for Pioneer. “In the Constitution, it says that the legislators should be accountable to the public quote at all times unquote .... but how can they be accountable to the public if we don't know what they're doing, if we don't have access to their documents?”

In March, the Pioneer Institute wrote a letter to the state Legislature, saying it is time for lawmakers to end their own exemption from public records laws.

That puts the influential conservative group in the same camp, on this issue anyway, as more left-leaning good government groups, like Common Cause and the ACLU of Massachusetts.

Various groups across the country that track government transparency, like Reporters Committee for Freedom of the Press and Muckrock routinely rank Massachusetts near the bottom.

But at least some legislators seem open to change.

State Representative Jennifer Benson was recently appointed co-chair of a commission to examine the Legislature's exemption from public records laws.

That commission had actually been established almost a year earlier, but when Benson took over, it hadn't held a single meeting. “Unfortunately, one of the ways I found out about this (lack of meetings), and the deadlines for it, was from the press,” Benson recounted.

But since then, the commission has held two hearings, with more coming up.

Benson said the issue is more complicated than it might seem. Lawmakers need to be able to negotiate, and there are legitimate issues around constituent privacy when it comes to records.

Transparency groups say they're glad to see these meetings finally happening and so far, they're taking the carrot approach.

But they may choose opt for the the stick, too.

“Certainly it's open for debate whether we or someone else should challenge this through the courts,” noted McConnaughton.

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