This week is Sunshine Week, a national initiative on the importance of government transparency, public records, and freedom of information. Every state uses some form of open records law to ensure a transparent government. It allows citizens to keep an eye on government activity by requesting documents from different branches of government. In Massachusetts that law needs work.
State government agencies can easily reject queries, leaving requesters with little recourse. They can submit an administrative appeal to the secretary of the Commonwealth, who can then refer violations to the attorney general’s office. But don’t count on that route; the attorney general’s office received no referrals in the past year. Requesters can also file a lawsuit. But this is a costly proposition because the law does not allow the recovery of attorney’s fees even if you win.
In a study conducted by the Center for Public Integrity, Massachusetts scored an “F” in public access to information. The law gets in the way of journalists doing their jobs. It also prevents citizens from finding out how the state spends their tax dollars.
Here’s an example of the clunky open government process: On May 28, 2013, I filed a public records request to the Department of Corrections for five years worth of “use of force” reports at each of the 18 Massachusetts correctional facilities. Those reports explain the details of each incident in which a guard decides to use physical force while on duty — much like the report on Joshua Messier, the prisoner who died at the hands of Bridgewater State prison guards amid a schizophrenic attack. That report got filed three years after Messier’s death.
I didn’t know the name Messier when I filed my request. I was curious and felt like use of force in the shrouded corners of society merited some muckraking. Indeed the DOC’s use-of-force reporting system needed review since at least the time of Messier’s death in 2009.
Two follow-up communications and more than a month later — well past the 10 days allotted for a response by state law — my request was denied. The department cited a provision that exempts criminal offender records from the open records law. I argued that those portions could be redacted and that I sought information regarding DOC personnel, not inmates.
Later came a fee estimate: $312,846.60. Yes, I was requesting five years of data, but still. I could buy a house in Malden for less.
More than six months after the initial request we eventually came to an agreement (I heavily reduced the scope of my request), and I paid a $27.90 fee for the records. More than a month later, I still don’t have the records. My only recourse now is a lawsuit, a prohibitively expensive prospect without the option to recover attorney fees.
But hope remains, at least for future requests. Northampton Representative Peter Kocot has proposed legislation that will give the open records law a facelift. It would allow plaintiffs to recoup attorney’s fees. It would also require agencies to designate a records officer. Additionally, it would reduce the 20-cent and 50-cent fees for copies and printouts to 5 cents and 7 cents.
These steps would likely lift that “F’’ grade for public access to information. Governor Patrick often touts the state’s commitment to transparency and his “Informed Massachusetts” website. But the governor offers only a watered down curated display, no substitute for a powerful open records law that allows citizens — not the government — to choose which records they examine.