For decades, Massachusetts governors have claimed the state’s public records laws don’t apply to them, an exemption that has allowed the state’s most powerful politicians to keep much of their daily activities and communications secret.
Then, in December, Maura Healey — a few weeks shy of her gubernatorial inauguration — indicated she would break from that long tradition of opacity.
Pressed by Boston Public Radio’s co-host Jim Braude to affirm that she would not claim an exemption from Massachusetts public records, Healey quickly responded, “yes.” Weeks later, she reversed herself, saying in a policy released by her office that she would evaluate requests on a case-by-case basis. Nonetheless, she still promised to follow the public records law and bring more transparency into the office “than ever before.”
But even that softer pledge has come under question after Healey’s office denied the bulk of a Globe request for basic records — while redacting other documents — covering her first month in office.
The Globe requested correspondences between Healey and legislative leaders, the governor’s daily calendar, a log of her travel, and a log of calls she made or received on her cellphone or direct office line for January.
Such information can provide the public with crucial context about whom the state’s new chief executive is choosing to meet with privately, how she is working with other Democratic leaders in the State House, and what policies she’s prioritizing internally. That, in turn, can help voters understand both how policy is made, and also hold leaders accountable for their decisions.
In response to the Globe’s request, Healey’s office denied access to her e-mails and phone call logs. Instead of claiming an exemption laid out in state law, Healey’s office offered a unique argument that providing these documents “would interfere with the governor’s necessary, regular activities and responsibilities and, as a consequence, unreasonably hinder the governor in effectively performing her duties.”
Healey’s office did release copies of her daily calendar, but redacted details from more than four dozen entries, including what appear to be meeting locations.
Justin Silverman, executive director of the New England First Amendment Coalition, said the argument that releasing certain information would “unreasonably hinder” Healey is one her attorneys “alone have created.”
“When she responds to a public records request and she is citing exemptions that don’t exist under the law, then it really calls into question that commitment to transparency that she is so publicly making,” he said. “She’s both saying she’s going to follow the law — and then she says there might be other obligations that require her to not follow the law. And she can’t have it both ways.”
Jillian Fennimore, a Healey spokeswoman, defended the governor’s approach, saying Healey has chosen to provide records, and more transparency, instead of claiming a complete exemption. She said the office is being guided by public records law, but argued that there may be situations that the law does not “adequately address.”
“Governor Healey has been clear that her office intends to comply with the public records law and provide more transparency than previous administrations,” Fennimore said.
What the Globe was provided offers a window into Healey’s early weeks as governor. She attended briefings on offshore wind and the Department of Correction, and in late January met with Bernard Tabary, an executive at Keolis, the MBTA’s commuter rail operator.
She also had calls or meetings at the State House with Representatives Richard Neal, Jake Auchincloss, and Ayanna Pressley, and met with business leaders, including on Jan. 23 with Jim Rooney of the Greater Boston Chamber of Commerce. She spoke with Skip Kodak, president of the Lego Group in the Americas, on Jan. 24, the day the company announced it would move its North American headquarters to Boston.
The next day, she had a call with Hillary Clinton, who a Healey aide said called to offer Healey “her congratulations.” She was identified on Healey’s calendar as “Secretary Clinton.”
”She will call YOU,” the calendar entry read.
But Healey’s office also redacted information from nearly 50 events or meetings, many of them weeks old. It cited a public records exemption related to public safety that is typically applied to records such as blueprints, schematic drawings, or security measures that would jeopardize public safety or cyber security.
Among the entries where the location appeared to be redacted was a weekly meeting about scheduling, as well as a “pizza lunch” for staff on Jan. 12.
Fennimore said the office chose to redact precise locations because it could allow people to discern a pattern of movement and create a security risk in the future.
“There’s a price to waving the government transparency banner and that is the public expectation that you will follow through,” said Mary Z. Connaughton, director of government transparency and chief operating officer at the Pioneer Institute, a libertarian-leaning think tank. “Picking and choosing what items to be transparent on defeats the purpose.”
In a response letter to the Globe’s request, the governor’s records officer, Michael Kaneb, reiterated that Healey intends to “provide more transparency to the governor’s office than ever before.”
“Public records requests will be evaluated based on the public records law, established exemptions, and any unique obligations of the governor’s office,” Kaneb wrote.
Healey’s office, like her predecessors, cited a 1997 state Supreme Judicial Court decision, known as Lambert v. Executive Director of the Judicial Nominating Council, that found that the public records law did not expressly name the governor, the Legislature, or the judiciary in the law. Governors have since used it as a blanket justification for not complying with the public records law to which state agencies, municipalities, and other public entities must adhere.
Healey, for example, also recently denied an independent journalist’s requests for certain e-mails from the Baker administration, saying its current policy does not “apply retroactively” to previous administrations. The journalist, Andrew Quemere, said he appealed to Secretary of State William F. Galvin’s office, but it chose not to intervene.
Massachusetts is a notoriously opaque state when it comes to public records laws. The state is one of only two in the country — Michigan being the other — where the governor claims a blanket exemption from the public records law. And it is the only state where the Legislature, judiciary, or governor’s office all claim to be completely exempt.
In Florida, for example, the right to access records made by all three branches of state government are enshrined in state law. The only body that can create exemptions is the Florida Legislature, and the governor can’t deny a public records request without citing a specific exemption.
Allowing the executive office a say in what is an acceptable record results in a system where the governor decides what the public is, and is not, going to see, said Barbara Peterson, a veteran First Amendment lawyer and the executive director of the Florida Center for Government Accountability.
Healey “is asserting what basically amounts to an executive privilege, after she asserts that she’ll have an open and transparent administration,” Peterson said. “Which is it going to be?”
Added Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association: “This is not just about living up to her promises. It’s about accountability and about her obligation to the electorate.”