A Massachusetts legislative panel has been disbanded after failing for two years to reach an agreement on whether to expand the public records law to cover the Legislature, judiciary, and governor’s office.
The Special Legislative Commission on Public Records missed its final deadline last month to file a report making recommendations, disappointing some lawmakers and advocates for open government.
“The inability of the commission to find common ground is an epic failure that weakens our democracy,” said Mary Connaughton, director of government transparency for the Pioneer Institute, a Boston think tank. “The Legislature has kicked the can down the road again, and with it the public trust.”
Massachusetts is the only state in the nation where the Legislature, judiciary, or governor’s office all claim to be completely exempt from state public records laws. And even when agencies are covered, the law is laden with exemptions that state agencies routinely cite to deny a wide variety of records, ranging from police reports of officers caught driving drunk to résumés for new hires.
The Legislature overhauled key aspects of the public records law in 2016, including requiring state agencies and municipalities to designate someone to field requests, setting new limits on fees, and giving people the opportunity to potentially recoup legal fees if they are forced to sue to obtain public records.
But the House and Senate put off dealing with the long list of exemptions in the 2016 law, instead deciding to set up a commission to consider whether to expand the law to the Legislature, judiciary, and governor’s office and creating a separate panel, made up primarily of lawmakers, law enforcement officials, and open-records advocates, to examine restrictions on law enforcement records.
In the end, neither group could reach any consensus on potential legislation or new rules.
And the commission charged with exploring whether to expand the law to the Legislature and other bodies never even issued a report.
“I am really disappointed that the commission was not able to file its report within the time frame allowed,” said Representative Jennifer Benson, a Democrat from Lunenburg, who cochaired the committee. “I am committed to continuing to look at this issue and finding ways to increase openness in the work in the Legislature.”
Though the commission couldn’t agree on any recommendations as a whole, its Senate members wound up filing a report of their own a week ago with the Senate clerk’s office.
The Senate report recommended the Senate and House make several changes, including giving the public access to written testimony filed with committees, making committee votes available online, and giving the public at least 72 hours notice before holding a hearing. It also recommended studying ways to increase openness in the rest of government and contained summaries of the testimony the commission received.
House members did not file a report of their own.
However, Benson, the House cochair, said the Legislature could be limited in what it can do to expand the law to the governor’s office and judiciary.
Lawrence Friedman, a law professor at New England Law, told the commission that the Legislature could potentially face constitutional questions if the law “could be seen as interfering with the functioning of the executive and judicial departments.”
“We are the only state in the union that broaches the subject in our Constitution,” Benson said. “We cannot change the Constitution with legislation.”
The commission, which held five public hearings last year, was originally slated to file its report by the end of 2017, but lawmakers extended the deadline for a year after initial delays in setting up the panel. The commission then missed the December 2018 deadline as well. This time, the Legislature didn’t extend the deadline and the commission automatically dissolved.
Meanwhile, various branches of government continue to withhold records that would be public in other states.
The judiciary recently refused to release information about tens of thousands of cases in which clerks declined, behind closed doors, to issue criminal complaints, even when clerks acknowledged there was more than enough evidence to justify the charges. And the State Police have refused to release payroll records for some employees.
“The state’s weak public records law will now continue to bar citizens from exercising their constitutional right to hold government fully accountable,” Connaughton said.