Public records, especially the governor’s, should belong to the public.
But even after a much-hyped reform last year, the state’s laws for disclosure still have multiple exemptions and loopholes that allow key government agencies, including the governor’s office, to routinely withhold information.
Massachusetts continues to be the only state in the country where the governor’s office, members of the Legislature, and the judiciary all claim to be exempt from laws requiring release of public documents.
And such opacity will remain the status quo for a little longer than expected. As the Globe reported recently, a legislative committee that was established by the new public records law to examine those three exemptions has never met. Some seats on the 14-member commission remain unfilled, despite the panel’s original Dec. 30 deadline to produce a report.
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The Legislature’s lack of urgency reflects a general disdain on Beacon Hill for transparent government — an unfortunate trait that crosses party lines and different branches of government.
Take Governor Charlie Baker’s office. In February, Globe reporter Laura Krantz requested records showing all constituent calls made to Baker’s office during a 12-month period. The documents were promptly denied. And so began a back-and-forth between the governor’s office, the state’s supervisor of records, and ultimately the office of Attorney General Maura Healey, the state’s top law enforcer.
In a disappointing turn of events, Healey’s division of open government sided with Baker. To justify its decision, the attorney general’s office cited a 1997 Supreme Judicial Court case. In that ruling, the court said that because the law doesn’t specifically include the governor, he is not subject to it.
The ruling, though, is more of a pretext for secrecy than a precedent. Although it’s a favorite of governors, who trot it out at any opportunity, the case, Lambert v. Executive Director of the Judicial Nominating Council, actually dealt with a very narrow question: whether a personnel questionnaire completed by a judicial nominee is a public record or not.
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Media attorney Peter J. Caruso Sr. has repeatedly argued that the governor, while not listed explicitly in the law, is not excluded either. Therefore, Baker’s documents should be presumed to be a public record.
“Lambert is a hollow case that revolves around one issue,” said Caruso, who’s also a board member of the New England First Amendment Coalition. “No one’s asking about questionnaires for judicial nominations, we’re talking about basic public records. Why would the governor, the highest office in the state, be exempt?”
As improbable as it may sound, the attorney general also argued that the office of the governor is actually not an executive office as described in the law. That’s because an “executive office” is defined in the books as those serving “under the governor” and headed by a “secretary.”
“The AG should at least explain how the governor’s office is not an executive office,” said Robert J. Ambrogi, executive director of the Massachusetts Newspaper Publishers Association. “It seems to me that the public records law was broadly written to apply to the executive branch as a whole. The exemption of the governor seems contorted.”
He’s right. To be fair, Healey’s office also argued that Baker can and should produce the records voluntarily. And yes, ideally, the public records law ought to be updated for specificity, which is where the legislative commission that has never met was supposed to come in.
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Last year’s public records reform tried to put some teeth into the law, by threatening agencies and municipal governments with fines if they didn’t comply with public records requests. It was a start. But when a legislative commission created to fine-tune and improve public records access hasn’t yet bothered to meet, clearly the spirit of law didn’t catch on. Instead, the foot-dragging only reflects ongoing contempt in many corners of government, starting with the two highest constitutional offices in the Commonwealth, for the public’s right to know.