Many of the governor’s e-mails and other documents would be subject to the state public record law for the first time under a bill that Secretary of State William Galvin is filing on Tuesday. Massachusetts is the only state that allows the governor to keep virtually all records confidential.
“We need to start addressing the egregious situation we have,” said Galvin, whose proposed legislation wouldn’t take effect until Governor Charlie Baker leaves office in 2023. ”This is the most powerful office in Massachusetts doing public business and dealing with public policy. The idea that the most powerful position in the state and its records are not subject to public scrutiny is absurd.”
The bill will be filed Tuesday on Galvin’s behalf by Democratic state Senator Jamie Eldridge of Acton, who has championed several other bills that would greatly expand the public records law.
“Each and every day the governor’s office and all of his or her agencies are making critical decisions that have an impact on the lives of people across Massachusetts,” Eldridge said. “Having access to the records of all the communication is critical to gaining insight into the rationale behind those decisions.”
Baker spokesman Terry MacCormack said the administration will “carefully review any legislation that reaches the Governor’s desk.” He also pointed out the governor signed a 2016 law that strengthened the public records law.
Massachusetts state government makes fewer documents public than many states, in part because the governor’s office, the judiciary and the legislature all claim they are exempt from the state’s public records law. But Galvin said the governor’s office is easiest to challenge because Massachusetts governors have historically relied — inappropriately, he believes — on a court decision.
The Supreme Judicial Court’s 1997 decision in Lambert v. Executive Director of the Judicial Nominating Council concluded that then-Governor William Weld did not have to produce records related to the background checks conducted on judicial nominees. According to Galvin, whose office oversees public records requests, every governor since then has relied on the Lambert decision to withhold almost all documents. Governor Charlie Baker’s office has said it decides each public records request on a case-by-case basis, but it too has denied requests for the most basic information.
“They clearly exaggerated the plain facts of the Lambert case to make a giant loophole for themselves,” said Galvin, whose own records are covered by the public records law. “The Lambert case was about judicial nominees. It wasn’t about the other activities of the governor’s office. They’re refusing to provide basic information.”
For example, Globe reporter Laura Krantz in 2017 requested a log of constituent complaints received by Governor Baker’s office. She didn’t ask for any personal information about the callers.
Her request was denied by the governor’s office, citing Lambert. She appealed to the supervisor of public records, who ordered the office to provide the records. When the governor’s office continued to refuse to provide the records, the supervisor of public records appealed to Attorney General Maura Healey, who agreed with the governor’s office that under Lambert, the records were not public.
Healey, who is running for governor, has said she supports subjecting the governor’s office to the public records law.
“AG Healey has long supported updating the public records law to cover the Governor’s Office in the interest of transparency and accountability.” said her spokeswoman Jillian Fennimore.
A 2021 court ruling potentially raises the cost for all government agencies that fight public records requests. The ruling was based on a 2017 law that grants legal fees to anyone who successfully sues to obtain public records
Last June, a superior court judge ordered the city of Worcester to pay $100,949 in legal fees to the Worcester Telegram & Gazette for refusing to turn over police internal affairs records.
She also ordered the city to pay $5,000 in punitive damages into the state’s Public Records Assistance Fund, which was created in 2016 to help cities and towns increase access to public records.
It’s unclear whether Galvin’s bill can win the necessary approvals of the Legislature and the governor since they are protected by the existing law. So far, Eldridge’s bills to expand the public records law — including one that would cover the Legislature — have gone nowhere.
“This is a more narrowly tailored bill“ that only impacts future governors, said Eldridge, “and I think it would therefore have a better chance of passing.”
Said Galvin, who is running for a record eighth term this year, “Can I promise you this is going to pass? No, but If I don’t try, there is no chance it will pass.”
Andrea Estes can be reached at firstname.lastname@example.org.