Modest efforts to enhance transparency in Massachusetts government are running into a smokescreen of misinformation being put out by government bureaucrats who don't want to fix our broken public records law. Opposition fear tactics now threaten to kill long overdue reforms, an outcome that would be bad for Massachusetts and even worse for democracy.
This much is clear: Massachusetts is ranked near the bottom nationwide on public records. The Center for Public Integrity gave us an "F" grade. The problem? The law – which hasn't been meaningfully updated in over 40 years – has no enforcement mechanism.
So when ordinary Massachusetts residents request basic information about how their government operates, local officials can – and often do – simply ignore them. The only recourse available is to sue the government, which is too expensive for most ordinary, middle-class folks or local newspapers. The result? Lack of accountability – and an "F" for "failed" government.
This also is clear: A bill pending before the state Legislature, entitled "An Act to Improve Public Records," would go a long way toward fixing the problem. It would provide for attorneys' fees if government officials unlawfully deny or ignore a request for public information. It's hardly a radical idea – 47 other states and the federal government have similar provisions, and it's working just fine in those states. Only Massachusetts, South Dakota, and Wyoming remain in the public records dark ages.
The bill also would help local town and city clerks by giving them more time to respond to public records requests, as well as proposing that agencies designate a point person to respond to requests for the sake of efficiency. It would help to bring local and state officials into the digital age by encouraging agencies to make public records available in electronic form – saving clerks' time, our tax dollars, and a lot of trees.
If this all sounds reasonable, where's the opposition? It is emanating from government officials who fear change. They call the new law an "unfunded mandate." That's false. There is no new mandate — the legal requirement to respond to public records requests has existed in the law for 40 years. The proposed law doesn't change any of the rules about what has to be made public. It only requires that government officials obey the existing law.
Others suggest updating the law might lead to frivolous requests and lawsuits. But this hasn't been a problem in the other states that have updated their laws. Moreover, the new bill actually allows cities and town to avoid civil penalties if they make a good-faith effort to comply with the law. And lawyers know that if they abuse the legal process, they already face sanctions and even disbarment.
Finally, some folks seem to be afraid that the new law will require an update to antiquated computer systems. As a technology late-adopter, I'm pretty sympathetic with this fear. But Massachusetts claims to be a high-tech hub — this is the home of MIT, Harvard, Northeastern, and the University of Massachusetts. How can we possibly hope to lure high-tech investors to relocate here if our own government is cowed into inaction due to fear of technology?
Opponents of public records reform hope that they can scare the Massachusetts Legislature into retreat. They'd prefer to continue to ignore the law and hide public records from the people of Massachusetts, just as they have done for the last 40 years.
But nobody – not even bureaucrats – should be above the law.
It's time for lawmakers to do the right thing: Fix the public records law.
Carol Rose is the executive director of the American Civil Liberties Union of Massachusetts.