Metro

Mass. agencies often limit access to records

State agencies show little regard for law, with access rules among weakest in country

Secretary of State William F. Galvin’s office is charged with helping oversee the public records law.
Jessica Rinaldi/Globe Staff
Secretary of State William F. Galvin’s office is charged with helping oversee the public records law.

Thomas Workman, a Taunton attorney who frequently testifies as an expert witness in drunken driving cases, has spent years gathering data on the accuracy of Breathalyzer machines across the country.

Ohio, South Carolina, and Washington all provided copies of their databases of breath-alcohol test results for free. Wisconsin offered the data for $75.

But when Workman requested similar information from his home state, he ran into a hurdle that stopped him cold: The Massachusetts State Police demanded $2.7 million for its records.

Advertisement

“I was more disappointed than surprised,” said Workman, who never got the data. “I do work across the country, and I have more trouble trying to get information in Massachusetts than other places.”

Get Fast Forward in your inbox:
Forget yesterday's news. Get what you need today in this early-morning email.
Thank you for signing up! Sign up for more newsletters here

It’s not just Workman’s perception. Massachusetts may have the weakest public records laws in the country, according to a Globe review of state practices and reports from public information advocates.

In Massachusetts, government agencies routinely take months to respond to requests, insist that records considered public in other states are confidential, or demand staggering sums for documents that are readily available in other parts of the country for free or at nominal cost.

Massachusetts ranked 49th out of the 50 states in the time it took agencies to answer public records requests filed through Muckrock, a Boston-based news startup that helps people obtain government documents. While Massachusetts law requires state agencies to make a substantive response within 10 days, Muckrock found they actually took 82 days on average to respond to requests filed by its users. Only Hawaii took longer.

Louisiana, which ranked just ahead of Massachusetts, was more than three weeks faster in answering such requests. Neighboring Rhode Island complied in just 15 days.

Courtesy of Thomas Workman
Thomas Workman, a Taunton attorney, received a $2.7 million bill for public records.

Advertisement

The Bay State stands out in other ways. A Globe review of public records policies across the country found it is the only state where the judicial branch, Legislature, and governor’s office all assert they are completely exempt from the law. It is one of only three states where people cannot recoup their legal fees if they win a lawsuit over improperly withheld documents, a restriction that discourages citizens from suing. And Massachusetts is the only state where jails and prisons can legally withhold logs of the people they lock up, the survey of public records advocates in all 50 states found.

“It is one of the worst state public records laws in the country,” said Katie Townsend, litigation director at the Reporters Committee for Freedom of the Press, a Washington, D.C., group that tracks public records issues across the country. “It’s hard to say whether it is the worst, but it is definitely toward the bottom.”

The state’s anemic records laws are particularly striking given the state’s historic role in creating American democracy and more recent leadership in other areas, including higher education and civil rights.

“It’s astonishing because it’s a state that prides itself in good government and being the cradle of liberty,” said Mary Connaughton with the Pioneer Institute, a Boston think tank that supports more government disclosure. But when it comes to government openness, she said, “if we are not at rock bottom, we are very near the bottom.”

The lack of government transparency is more than an just an annoyance for watchdog groups and journalists. It makes it more difficult for anyone to tell whether public officials are doing their job or to uncover long-festering problems.

Advertisement

That’s particularly significant in Massachusetts, where the government has recently suffered from an array of management failures that took years to come to light, including unbridled favoritism in the hiring of probation officers, rampant falsification of tests at the state drug lab, and the failure to properly supervise everything from compounding pharmacies to children in foster care.

‘Government officials who violate the law face no consequences other than a possible slap on the wrist.’

Robert J. Ambrogi, Boston lawyer, Massachusetts Newspaper Publishers Association executive director 

Some think this state’s culture of government secrecy has fostered an environment that can facilitate corruption, long shielding officials’ actions from public scrutiny. Three consecutive speakers of the House were convicted of felonies, while a Chelsea public housing official eventually went to prison after hiding his $360,000 salary for years.

“The states with the weakest public records laws seem to have the highest levels of corruption,” said Terry L. Mutchler, an attorney with Pepper Hamilton in Philadelphia who previously ran Pennsylvania’s open records office. “I do not believe it is a coincidence, the evidence is so clearly to the contrary.”

Massachusetts wasn’t always seen as a national laggard. The state statute, modeled on the federal Freedom of Information Act, was originally enacted in 1973 — before Connecticut, Rhode Island, and many other states passed sunshine laws of their own.

But while the federal government and other states strengthened their laws after the Watergate revelations that forced President Richard Nixon from office in 1974 and other scandals around the country, Massachusetts did the opposite — steadily exempting more and more records from the law, and ignoring complaints about the law’s failings.

Some critics blame the state’s long history of one-party rule in the Legislature. The Democrats have controlled both chambers since the late 1950s, and many state lawmakers regularly run unopposed. Complacency and worse can grow out of such easy dominance, they say.

“Transparency tends to suffer when one party, Democrats or Republicans, exercises such uniform control over time of state government,” said Erin O’Brien, chairwoman of the political science department at the University of Massachusetts Boston.

Secretary of State William F. Galvin, a Democrat whose office is charged with helping oversee the public records law, agreed that one-party domination of the Legislature could be a factor. But he said he didn’t think it matters which party is in control.

“It is not a partisan thing,” Galvin said. “Whoever is in power tends not to be welcoming to public records.”

Galvin pointed out that Republican and Democratic governors alike have argued the governor’s office is completely exempt from the public records law for years. In addition, Galvin said, Massachusetts agencies have a long history of making their own rules for doling out information, and have been reluctant to give up control of their records.

“There has been sort of a bureaucratic fiefdom” that has developed over the years, Galvin explained.

There are other possible explanations as well.

One is that watchdog groups in Massachusetts have been largely ineffective in pushing for stronger public records laws, either because they lacked clout or were focused on other issues, such as campaign finance or criminal justice reform. And major local news media, including the Globe, until recently have rarely focused coverage on problems obtaining records, concerned that it could look too much like a self-interested complaint.

The situation may finally be changing. A number of reform-minded advocacy groups, such as the state chapters of Common Cause and the League of Women Voters, have joined forces this year to push for legislation to overhaul the public records law.

Both House Speaker Robert A. DeLeo and Senate President Stanley C. Rosenberg indicated they support updating the public records law. And Galvin has threatened to launch a ballot initiative of his own to strengthen the law if the Legislature does not act this year.

“Momentum is building,” state Senator Jamie Eldridge, a Democrat from Acton, noted after a standing-room-only crowd jammed a hearing in support of efforts to revamp the public records law in May.

Just last week, a legislative committee endorsed a bill by state Representative Peter V. Kocot that would reduce the cost for copies, make it easier for requesters to get documents electronically, and give citizens the right to attorneys fees if they win a lawsuit to make records public.

But the Northampton Democrat’s bill would also give agencies more time to respond to requests and do nothing to close the litany of exceptions to what is public. “It doesn’t address a lot of the problems in the law,” said Robert J. Ambrogi, a media attorney and executive director of the Massachusetts Newspaper Publishers Association.

Kocot said he hopes the Legislature will take a hard look at the exemptions in the law later.

And there’s no guarantee Kocot’s bill will pass. It is now being reviewed by a second panel, the House Committee on Ways and Means (where a similar proposal died last legislative session). And the Massachusetts Municipal Association, a lobbying group representing cities and towns, complained Friday that the new requirements amount to “costly new unfunded mandates.” Governor Charlie Baker has yet to take a position on the legislation.

As officials and interest groups ponder possible changes, the longstanding pattern of denial and delay continues. Lawyers, journalists, and activists say they regularly face obstacles trying to obtain records, partly because of the unusually large number of exemptions written into Massachusetts law.

Consider the case of Emory G. Snell Jr., who was sent to prison in 1995 for killing his wife after she was found dead in her bed in Barnstable. The conviction was basely partly on an autopsy that found she died from being smothered, rather than natural causes.

But long after Snell was locked away, questions emerged about the competence of the medical examiner who performed the autopsy. A former supervisor, now deceased, had alleged that the examiner was barred from participating in homicide investigations because of past mistakes.

But when Snell and his attorneys tried to obtain the medical examiner’s records to confirm the allegations, the state refused to release the file. The reason? The office of the chief medical examiner noted that personnel records — including disciplinary records — are exempt from the public records law, even when it’s arguably in the public interest for the records to be released.

“I think if the public knew, they would find it shocking,” said Snell’s attorney, Amy Belger.

Belger still hopes to obtain the records through other legal avenues, but, for now, Snell remains behind bars, and the public remains in the dark about potential problems in the state medical examiner’s office.

Even when records are clearly public information, it’s common for agencies to ignore requests or take months to respond.

The Department of Children and Families took 18 months to respond to a Globe request for legal claims against the agency after it lost track of a Fitchburg preschooler who was later found dead. DCF only provided the records this month, when a reporter told the agency he planned to write about the delay.

“It is unacceptable that this request took so long to complete,” said Rhonda Mann, director of communications for the Executive Office of Health and Human Services, which includes DCF. Mann said the Baker administration inherited many outstanding records requests when it took office in January and is working to clear the backlog.

But no matter how long agencies take to respond, they know they won’t be penalized for breaking the legal requirements for timely disclosure.

The statute calls for a potential fine of up to $500 and a year in prison for violations. But the attorney general’s office can’t recall a single instance when it has prosecuted anyone for flouting public records rules.

“Government officials who violate the law face no consequences other than a possible slap on the wrist,” said Ambrogi, the Boston media attorney.

Beyond delays in compliance, watchdogs say they have heard growing complaints that agencies are charging exorbitant fees for records, effectively denying access by making it unaffordable.

The State Police, for example, has a penchant for charging unusually large fees, including nearly $43,000 for an electronic log of its public records requests. The department also tried to charge another reporter $710 just to obtain an estimate of what copies would cost.

But State Police may have topped themselves by demanding $2.7 million for a copy of its database of breath tests in 2012.

The state recently acknowledged that as many as 150 tests were flawed because the machines were improperly calibrated, and Workman suspects the data would show the problem was more widespread.

Even though Workman requested the data in electronic form, the State Police insisted on basing its estimate on the cost to print out the data in hard copy — all 2.5 million pages, at 50 cents a page. Agency officials also said it would require more than 41,000 hours — at $35 per hour — to review each page and redact any confidential information — even though Workman said he wasn’t seeking names or other personal data, and the state could simply delete those entire columns.

“They didn’t want me to have the data,” Workman said. “They were going to find a way to make it so expensive that they didn’t have to provide information that belongs to us all.”

State Police spokesman David Procopio said it turns out the agency made an error in calculating its cost estimate. He said the bill for Workman should be only $1.2 million.

“I am cognizant that is still a large amount of money, but the size of the cost estimate is in direct proportion to the scope and nature of the request,” Procopio said.

Such fees would not be allowed in many other states.

Many states require agencies to make records available in electronic form when possible, eliminating the cost of paper copies. (The secretary of state’s office has advised Massachusetts agencies they must do that as well, though it is not explicitly in the statute.)

And roughly one-third of the states, including California, Ohio, and Washington, restrict or prohibit charges for reviewing and redacting documents. West Virginia became the latest state to ban labor fees for compiling records in April.

In Massachusetts, citizens have the right to sue agencies that refuse to release records or charge excessive fees, but that can take years and cost thousands of dollars. And they can’t recoup their legal fees even when they prevail in court.

“Even when you win, you still lose and the public loses,” said Matthew R. Segal, legal director for the ACLU Foundation of Massachusetts, which recently spent a year suing a consortium of local police departments after the group claimed it was exempt from the public records law.

Indeed, many journalists are stunned to discover how much more difficult it is to obtain basic records when they move to Massachusetts from states with more open government.

“It was like walking from the sunshine into a dark room,” said former Miami Herald editor Thomas Fiedler, who became dean of Boston University’s College of Communication in 2008.

In Florida, many records that are exempt from disclosure in Massachusetts are readily available: Employee disciplinary records. Mug shots. Jail booking logs. Many of these records are even available for free or online.

Unlike in Massachusetts, the Florida law covers portions of the courts, Legislature, and the governor’s office, and contains fewer exemptions.

And Florida has even prosecuted officials for violating the law; at least two people have been sent to prison, and many others have been forced to pay a $500 fine.

“In Florida, the default position is that government belongs to the public,” Fiedler said. “Here in Massachusetts, I got the sense that the burden is exactly the opposite.”

Todd Wallack can be reached at twallack@globe.com. Follow him on Twitter @twallack.