Gov’t secrecy best fought with access to records

by

By Walter V. Robinson

In the muddled arena where public officials and journalists co-exist, there’s a dirty little secret that’s mostly kept from the public: Too many of the public officials who conduct the public’s business choose to keep our records out of reach. They know it. We journalists know it. But the public rarely has an inkling.

It’s time for a change.

At a time when the federal government has put a “secret” stamp on far too much government information, it’s difficult to overstate our public access challenges. It’s easy to assign blame when journalists or public advocacy groups are denied access to records that, by law, ought to be public. Among ourselves, we point the finger at elected and appointed officials who hoard public information as if it were their own.

But the fault lies just as much with those who want the information as those who block our access to it. In too many cases, barriers to open government persist because we seldom raise our voices in unison. Give any good editor a tip that some poor sap has been run over by the government, and the story’s as good as greased for page one.

But when a government agency puts public information off-limits, the victims are countless. And how do we react? Squeamishly. Most of the time, we don’t consider it news. Or if we do, we’re inclined to assign someone to write a brief that only our most astute readers can find. To be sure, most of the time, most of us – public-spirited citizens or journalists – ask for public records and receive them without incident. Most often, public bodies conduct the public’s business out in the open. But the exceptions are numerous and worrisome — and from my experience, they are on the rise.

Those of us whose news interests are primarily local glance up every now and then and are frightened at what we see happening in Washington: The federal government has an enormous capacity and appetite to know everything about us – even when the law prohibits it. Yet it is increasingly difficult for us to find out anything about them — even when the law requires them to disclose it.

I mean to use the terms “us” and “them” with emphasis. Because I believe, as do many Americans, that some of those in power – in both parties – understand that an ill-informed public is easier to manipulate. No wonder so many Americans feel alienated from government, and threatened by it. In one poll, 75 percent of Americans described the federal government as secretive.
And 40 percent say the same about local government. Which brings me back home. You may recall reading that in Massachusetts that the Executive Branch of government has been considering tightening our access to criminal history information — as if we had much to start with.

Four years ago, the Boston Globe Spotlight Team asked the state for the identifying information for several thousand fugitives who are charged with violent crimes: murder, rape, armed robbery and the like. We didn’t want their medical records – just their names, last known addresses and dates of birth. It almost doesn’t matter why we wanted the information, though you can probably guess that the Globe was interested in finding some of the fugitives. What matters here is the state’s response. We were turned down. The Criminal History Systems Board determined that, under the law, dangerous people charged with the most heinous crimes are entitled to the law’s privacy protections. If you think that was an aberrant decision, please know that it was upheld by a Superior Court judge. Then the dispute became Kafkaesque: The Board decided that there was a way we could obtain the identifying information we needed. If we wanted the identifying information for a fugitive from a murder charge – by definition someone who could not be located – we could have it if we got the fugitive to write a letter giving the state permission to release the information.

Even when the law is on our side, it is often used against us. In 1999, the Globe Spotlight Team published a months-long series on municipal corruption. One story was about how an affordable housing lottery in the town of Easton was manipulated so the son of a town official could win. After the article ran, the phone rang, with a tip that the same thing had happened in the white glove town of Westwood. We checked property sales, and got an apparent confirmation. We asked town officials for the lottery records. They dithered and dallied, and then turned us down. I called the town administrator, who told me, in so many words, “Sue us.” Our choice: Fight a prolonged and expensive battle for the records in court, or move on. We chose the latter course. The town’s lawyer no doubt knew that in Massachusetts, among too many other states, there is no sanction in the Public Records law for public agencies that deny access to public records.

Ponder this too: Not too long ago, a Globe reporter went online and easily discovered a website where golfers’ scores – and handicaps – are posted. They included House Speaker Sal DiMasi, who in his first months as Speaker spent many weekdays playing golf – and playing it well; he has a single-digit handicap. So his golf scores are public. But no one among us is legally permitted to attend the deliberations of legislative conference committees that decide how billions of our tax dollars will be spent.

When we are entitled to public records, it can be costly even when we get them. This has long been a problem for private citizens who want public documents. In addition to copying charges, many public agencies nowadays charge search fees that can exceed $50 an hour – for documents that are routinely posted online in many states. In 2007, when the Globe asked the city of Boston for health inspection reports for 50 high-end restaurants, the Inspectional Services Department was happy to comply – for $2,039, which included 78 hours of search time to find the records. We paid the money. But when I reminded the commissioner that Mayor Thomas M. Menino had promised several years earlier to put those inspection reports into a searchable online database, the price started dropping quickly, like in those Wal-Mart ads. The final cost was about $600. It should not go unsaid that The Globe is one of the very few news organizations left that can afford $2,039 for important public records. And that was last year.

When it comes to public records, I am delighted when I’m looking into someone who has roots in the Sunbelt. That’s because so many public records are online in those states. In quaint New England, with its mid-20th century public records laws, we’re not so lucky. In Massachusetts, for instance, fewer than 20 percent of communities put their assessing records online.

In some jurisdictions, access to public records is so difficult that when we score, we sometimes feel we’ve been handed something we’re not really entitled to. I don’t know about you, but I’m given to profusely thanking those who are merely complying with the law.

But that’s the wrong attitude to have. And we can do a lot to change the belief held by some public officials that they can get away with saying no. One surefire way: All of us, public interest groups and news organizations, must become more insistent that public records be public — and to recognize that it is newsworthy when they are not.

For public officials to change their habits, public attitudes must change. We can make that happen. For public access laws to change to reflect 21st century technology, public education is critical. We can make that happen. The New England First Amendment Coalition, and its partner, the New England First Amendment Center at Northeastern, are committed to pushing for that change – across New England. We have different laws, but access problems that are all too common. Problems that, together, we can surmount.

There is strength in numbers. And by shining a light on this impediment to democracy, we are not acting out of self-interest. We are acting in the public interest.

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