Massachusetts state legislators say they are creating a new era of openness on Beacon Hill. They want to make more votes public, better explain the bills they’re proposing, and make changes that promote, as one Democrat put it, “extreme transparency.”
Very few, however, say they are inclined to embrace another basic requirement: that the Legislature, like the vast majority of public bodies in Massachusetts and its legislative counterparts nationwide, provide records when the public asks for them.
Just 12 percent of state legislators said they believe they should be subjected to Massachusetts’ public records law, according to a Globe survey of the state’s 198 lawmakers. Currently, government emails, memos, and documents are automatically presumed to be public — unless those records come from the Legislature, the governor’s office, or judiciary. All three claim they are completely exempt from the law, either because the law itself says so or the courts have said they’re not included among the entities that have to follow it.
Even fewer lawmakers (11 percent) said Governor Maura Healey’s office should also be mandated to follow the law, and just 7 percent said the judiciary should, too, the Globe survey found.
The vast majority of lawmakers — 78 percent — did not respond at all to the Globe’s survey, failing to return multiple emails, calls, or text messages over several weeks from reporters seeking to identify where they stood on the issue. Of the 43 who did reply, roughly half did not answer questions directly. Some cited concerns about expanding the law to cover themselves, such as opening sensitive emails from their constituents to public disclosure. Others suggested they haven’t seriously weighed the issue.
“I don’t know the ins and outs of the public records law, because I’ve never been subject to it,” said Senator Mike Barrett, a Lexington Democrat and Senate chair of the energy committee, who last year handled closed-door negotiations over complex climate law. “I just don’t know what compliance [with the law] would mean for an office like mine, which is pretty much a policy shop.”
Taken together, the results suggest there is little appetite in the State House to change Massachusetts' place as the only state in the country where the governor, Legislature, and judiciary all claim to be completely exempt from the state’s public records law.
“The survey shows the vast majority of legislators couldn’t have been bothered to simply respond. That indicates to me that transparency is just not a priority — and it needs to be and the public should demand nothing less,” said Justin Silverman, executive director of the New England First Amendment Coalition.
Exempting some of the state’s most powerful elected officials from the records law means the public can’t see what’s helping drive major decisions, good government advocates said.
Who may have privately lobbied the governor before she made a major announcement? Was a bill drafted by the lawmaker who filed it — or was it actually an outside group?
“Right now people view the Legislature as a place of darkness,” said Mary Connaughton director of government transparency for the right-leaning Boston-based think tank the Pioneer Institute. “Changing the public records law would mean light.”
Opening the Legislature, governor, and judiciary to a public records requirement appears to be popular among voters: 68 percent of respondents to a University of Massachusetts Amherst poll last month said they support requiring that all three “fulfill any lawful public record requests.”
Massachusetts is one of just nine states where the state legislative body is exempt in some form from state public records laws, according to data from the Reporters Committee for Freedom of the Press. Massachusetts is also just one of two states, with Michigan, where the governor and Legislature both claim they’re not bound to the law.
“Massachusetts is not a shining star in the United States of America,” said David Cuillier, director of the Freedom of Information Project at the University of Florida’s Brechner Center for the Advancement of the First Amendment. In states such as Massachusetts, where one party dominates elected office, those in power “want to keep their opponents at bay, and so they do everything they can to work in secrecy,” he said.
“Government secrecy is like a cancer on democracy,” Cuillier said. “And it’s growing, and we have to figure out a way to get rid of it.”
State legislative leaders entered this year promising to open up the legislative process.
Voters in November overwhelmingly approved a ballot question giving the state auditor the authority to conduct an audit of the Legislature, offering a rebuke of its “lack of engagement.” The Globe spent the past year reporting on the State House’s inner workings, detailing how lax rules and secretive practices help shape how Beacon Hill operates, including how the budget is built and how lawmakers spend their campaign cash on dinner and events without having to disclose with whom they’re meeting.
In recent weeks, lawmakers have approved a range of changes open-government advocates have long sought. Both chambers said they back publishing legislative committees votes and providing “plain-language” summaries of legislation. The House and Senate still must agree on several of the proposals, which if adopted would change the Legislature’s internal rules but not the law itself.
Lawmakers, however, have remained mostly silent on changing public records law. Democrats hold super majorities in both the House and Senate, giving them near-total control over the fate of policy in the state, but only 30 Democratic lawmakers responded to the Globe’s survey.
House Speaker Ron Mariano was among those to respond, but he declined to take a firm position. Rather, he offered a statement saying lawmakers would have a chance during the two-year session to hear testimony on at least three bills seeking to expand the state’s public records law to cover the governor’s office or the Legislature.
“Our public records law parallels the federal government’s, and is designed to promote an understanding of government agency actions,” Gray Milkowski, a spokesperson for Senate President Karen E. Spilka, said in a statement in response to the survey. “The Senate will review all proposed legislation, including any that impact public records laws, and listen to all stakeholders as bills are heard in committees.”
Senator Rebecca Rausch, a Needham Democrat, filed legislation this year that would extend the public records law to cover the Legislature and governor after a previous bill died in a committee last session.
Allowing voters to know what their lawmakers are doing is particularly important “now against the backdrop of the other disastrous mess in Washington, D.C., that we’re seeing,” Rausch said in an interview. Still, she acknowledged the resistance among many lawmakers to making those changes.
“The Legislature in Massachusetts has never before been subject to the public records law, the governor’s office has [not] been subject to the public records laws — those are culture changes," Rausch said. “Culture change is hard, but also possible.”
How to actually implement those changes is a question several lawmakers raised concerns about. Rausch’s bill would, for example, shield an array of records from an expanded public records law, including some emails between lawmakers and constituents, as well as any documents “relating to developing policy positions of members of the general court or the governor of the Commonwealth.”
State law already includes a similar but far narrower exemption that covers records during an “ongoing deliberative process.” Mayors, city council members, and many state agency leaders, among other officials currently subject to the law in Massachusetts, also have to make a legal argument for why a record should be withheld.
“I really don’t know what the purpose of the bill is because we’d be subject to the public records law, but essentially all of what we do would be exempt,” said Senator William Brownsberger, the Senate’s third-ranking Democrat, of Rausch’s bill.
Senator Lydia Edwards, an East Boston Democrat, said she personally had “no problem” with expanding the public records law; she was, after all, subject to it as a Boston city councilor. She said, however, she wanted to see exemptions for “genuine requests for help” be better defined in any new law. Many constituents, she said, will “pour out their life story in an email.”
“I do not believe that there is a larger public good that comes from the general public knowing who is contacting my office for assistance with issues such as unemployment or MassHealth,” said Representative Hannah Kane, a Shrewsbury Republican.
Healey, for her part, said in December that she would be open to signing a bill subjecting her office to the public records law, as long as it had the “right exceptions in place.” She did not detail what those should be. Her comment came in response to questions from the Globe, and the governor has not filed any legislation herself to make the change.
The law already exempts a range of other records from public disclosure: personnel files, medical records, or documents related to criminal investigations all can be shielded from public disclosure, among others.
Healey has released records voluntarily such as redacted versions of her monthly calendar, after vowing to be more transparent than her predecessors. But Healey has denied other requests, such as for her correspondence with legislative leaders and phone call logs, arguing that releasing them would “unreasonably hinder the governor in effectively performing her duties.”
Senator Jamie Eldridge, who filed one of the bills that would bring Healey’s office under the law, said the public and the Legislature need more insight into the major policies Healey’s office is pursuing.
“We don’t know why the decisions are being made or the rationale,” he said.
The Marlborough Democrat said it’s not just debate over the legislation’s details that is a stumbling block to getting it passed.
“There’s a real cultural resistance to transparency on Beacon Hill,” he said. “It’s ideally getting legislators comfortable with how the public records law works.”
Some who didn’t respond to the survey are those who’ve pushed to inject more transparency into Beacon Hill.
Senator Michael Brady, a Brockton Democrat who at Secretary of State William F. Galvin’s request this year filed legislation that would subject Healey’s office to the public records law, did not offer his public stance on the issue. Senator Bruce Tarr, the chamber’s top Republican, just two months ago cowrote an opinion piece calling on the Legislature to end “business as usual“ and increase transparency. The Gloucester Republican, too, didn’t respond to multiple emails or an interview request submitted directly to his office.
That so few offered their opinion indicates that lawmakers are “unwilling to abide by what the people really want,” said Connaughton of the Pioneer Institute.
“And that is transparency,” she said. “Real transparency.”
Matt Stout can be reached at matt.stout@globe.com. Follow him @mattpstout. Anjali Huynh can be reached at anjali.huynh@globe.com.