Would it really amount to a threat to lawmakers if they couldn’t keep their records secret?
Doesn’t seem that way to us. But that’s one of the faulty assumptions embedded in Beacon Hill’s latest excuse for failing to improve the state’s inadequate public records laws.
Here’s the background: Despite reforms in 2016, the state has the weakest public records law in the nation, one that exempts all three branches of government — the governor’s office, the judiciary, and the Legislature — from disclosure requirements. Citizens have no right to see, for example, Governor Charlie Baker’s records, any communications the Senate president and House speaker might have had with lobbyists, and other documents that members of the public might legitimately want to read.
Two years ago, the Legislature convened a commission to study whether the law should be expanded. That commission recently disbanded without any report. It was a far cry from what the state needs, and what the governor and the Legislature should back: a strong public records law that covers all parts of government, including themselves.
Now, the House, Senate, and governor could impose some disclosure rules on themselves. But that’s a subpar solution. Legally binding requirements that can’t be waived like a pesky term limit would be better.
Members of the commission from the Senate did issue a report, and it suggests why the group failed to act: Lawmakers found a convenient way to read the state constitution that would prevent the Legislature from imposing a public records law on either itself or other branches of government. Of course, the fact a law might be challenged doesn’t mean that challenges would actually succeed.
Take the concerns raised in the Senate’s report about whether the Legislature can subject itself to a public records law. The authors of the state constitution wanted lawmakers to have the freedom to fully debate laws, without being afraid that what they said or wrote in the course of making legislation would get them in hot water later. The state constitution says: “The freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.”
What does any of that have to do with public records, you might ask?
Well, a law professor told the commission that “such broad language reasonably should be understood to include public records requests, which are ‘actions’ that could serve to undermine the constitutional goal of free deliberation in the General Court in much the same way as a criminal prosecution or a defamation suit.”
But a public records request isn’t punishment. It doesn’t hurt the recipient — or anyone else. Providing records doesn’t undermine free deliberation in the Legislature — it justs allows the public to see it. Getting a public records request can’t be compared to a criminal prosecution.
And it’s not at all clear that the courts would see a public records law applied to the Legislature in such punitive terms. “It’s certainly not a settled matter of law one way or another,” said Pam Wilmot, the executive director of Common Cause Massachusetts, which backs greater disclosure.
It’s true there’s been some progress on government transparency over the last few years; the 2016 law strengthened provisions that apply to state agencies and municipalities. But when it comes to state government, Beacon Hill still seems to be looking for any reason to avoid facing the sunlight that it needs.