Wayland resident, executive director of New England First Amendment Coalition
As the COVID-19 pandemic loosens its grip on Massachusetts and public discourse turns to another crisis — police misconduct — legislators continue to meet remotely. And as always, they communicate secretly through e-mails and text messages. Because the Legislature is exempt from the state’s public records law, transparency on Beacon Hill was elusive long before the coronavirus made its appearance. Now, even more so.
Massachusetts is one of a small number of states that exempt legislative records. That means documents considered public in almost all other states — daily schedules, meeting agendas and minutes, phone logs, texts, and expense reports, to name just a few — can be off limits in the Commonwealth.
These types of records are used by community watchdogs, journalists, and concerned citizens throughout the country to keep their legislators accountable. They now depend on those records even more, no longer having normal access to politicians or their staff in the hallways of government.
The exemption of these records in Massachusetts is a significant burden on citizens, especially during a time of crisis.
Various states are now convening legislative committees to address the challenges of reopening economies, paying for COVID-19-related expenses and ensuring public access to ballot boxes. Massachusetts lawmakers are having similar conversations, but they’re discussing these profoundly important questions without the transparency our public records law requires of other governmental bodies.
Because it is exempt from the public records law, the Legislature can effectively decide on its own whether to release records requested by the public. One journalist told me, for example, of the hurdles she faced trying to obtain written testimony accepted by a committee at a remote hearing in May. cq
Meanwhile, bills addressing training, discipline, and certification of police will be debated by lawmakers without the transparency a stronger public records law would provide. Police misconduct, an issue with enormous public consequence, will be addressed with more secrecy than should be tolerated.
The Massachusetts public records statute, ironically, enables this secrecy within our legislature. Accommodations made during the pandemic may have exacerbated the problem, but we didn’t need a crisis to underscore the issue. Unfortunately it’s written right into the law.
Professor of law at New England Law School, in Boston
Lawmaking inevitably requires compromise. Effective compromise, in turn, requires that lawmakers trust that they can be honest with one another. Our state representatives and senators need to be able to speak their minds about policy ideas and proposed laws that, if enacted, might affect all the Commonwealth’s citizens.
The framers of the 1780 Massachusetts Constitution, including its chief architect, John Adams, saw free and open legislative debate as “essential to the rights of the people.” Article XXI of the constitution accordingly protects legislative give and take by prohibiting “deliberation, speech and debate” from serving as “the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.”
The Massachusetts Supreme Judicial Court has interpreted this provision broadly. In the first important case about the reach of Article XXI, Coffin v. Coffin, the court in 1808 held that the provision protects such legislative activities as “the giving of a vote,” “the making of a written report,” and “every other act resulting from the nature, and in the execution of, the office.”
To hold otherwise would have risked undermining the kind of legislative deliberation that the constitution contemplates. This would also be true if the Legislature were completely subject to the Commonwealth’s public records laws. It is not difficult to imagine state representatives and senators censoring themselves out of concern that their words might be taken out of context. Perspectives about proposed laws and their implications could go unshared and, therefore, unconsidered.
Of course, no privilege is absolute, and Article XXI does not protect speech or debate unrelated to matters before the state Legislature. In the Coffin case, for example, the court concluded that a legislator was not immune from being sued for making defamatory remarks to one of his colleagues about matters with no connection to legislative business.
The Legislature, moreover, could simply agree to subject itself to public records requests. If the Legislature were inclined to do that, we should hope that it balances whatever benefits it sees from additional transparency against appropriate respect for the open deliberation among its members that the framers believed essential to good governance.
As told to Globe correspondent John Laidler. To suggest a topic, please contact firstname.lastname@example.org.