As she stood before a group of area newspaper publishers last Friday, Attorney General Maura Healey said: “Government accountability and transparency are as important as they’ve ever been. We need a public that understands and believes in and trusts government. . . . [It] seems to me that one of the ways you get there is by making sure there is accountability and integrity.”
Yet, on that same day, Healey’s office — charged with enforcing the public records law — denied a Boston Herald request to obtain an MBTA report produced by outside counsel, ruling the agency can continue to keep the document secret under common law attorney-client privilege. In doing so, Healey’s division of open government overruled the state supervisor of records in Secretary of State William Galvin’s office, who had cleared the release of the report that explored issues related to the MBTA’s policies on family leave and absenteeism.
Mismanagement at the T has come at considerable taxpayer expense, and any report paid for by the state that helps explain the T’s policies should be available to the public. In invoking attorney-client privilege, an arguable claim, Healey isn’t following the spirit of the public records law, or living up to the lofty ideals she expressed on the very same day. In this case, the client, the Commonwealth’s largest public transportation authority, should be compelled to waive its rights in the public interest.
The MBTA did release the recommendations that stemmed from the report, but as Herald reporter Matt Stout relates, the report creating the basis for those recommendations has been denied to the public. “You can tell me solutions, but you’re not saying what the problems are?” Stout says. Taxpayers deserve to know the full scope of just how badly the MBTA’s policies on family leave and absenteeism were, to ensure that whatever changes are being implemented go far enough to correct mismanagement.
The supervisor of records, Shawn Williams, was skeptical of the T’s attorney-client privilege claim, indicating that the agency had not “adequately explained how, in light of the presumption that government records are public records, the attorney-client privilege applies,” under the current law, to shield the entire document. Williams asked Healey’s office to review the matter but, unlike the supervisor of records, the attorney general’s division of open government is not even allowed by law to waive attorney-client privilege in order to view the full document in order to make an informed determination. Instead, it relied on affidavits provided by the attorneys, as well as phone interviews with MBTA officials. Translation: The public release was backed by the only official who had actually read the report, and then blocked by one who hadn’t.
To be fair, Healey has won plaudits recently for her decision to sue a group of district attorneys for their refusal to release a list of cases they’ve prosecuted, and there is no doubt her commitment to a more open government is real. But media outlets and regular citizens alike continue to face an uphill struggle in accessing public records that, for whatever reason, government officials would not like them to see. The Herald’s pursuit of the MBTA’s report is emblematic of the frustrating path in accessing government records that belong in the public realm.