Ensuring Democracy

by

By Karla de Steuben

Article V of the Massachusetts Constitution states,

“All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.”

The sentiment expressed in this article, i.e., that public officials are accountable to the public, is a fundamental principle of democracy. However, if the people do not have easy access to information about the actions of their elected officials, this sentiment becomes an empty platitude.

The Massachusetts Open Meeting Law and the Public Records Law are intended to ensure public access to information about the actions of the state and local government. They are crucial to the ability of the people to be able to hold their government accountable. Their effectiveness matters to the strength of our democracy.

Apart from occasional newspaper stories about violations, however, it is difficult to tell how effective the Open Meeting Law and the Public Records Law are in practice. Cities and towns are not required to keep a record of the number of public records requests they receive and whether the requests were fulfilled. There is simply no way to tell how many people are told no in response to a request and just give up. In addition, undoubtedly many open meeting law violations go unreported simply because the public does not often realize when a violation has occurred or reporting a violation to the local district attorney’s office seems too onerous.

Based on my experience, I am convinced that the Open Meeting Law and the Public Records Law fall far short of their intended purposes. In response to public records requests, I have been asked repeatedly what I want the records for, something that is prohibited under the law. I also have been asked to pay an exorbitant fee for copies of the records and have been told similar stories by other people. About four years ago, when I requested a copy of a public record, I was told I could not have a copy because it would only confuse me– clearly not one of the legitimate exemptions to the Public Records Law. In the end, I received a copy of the two to three page record, but only after I had spoken to the head of the department and sent in a written request. It took a day and two trips to the town hall for me to get a response to my request, when it should have taken five minutes.

I also have witnessed or heard about many violations of the Open Meeting Law. For example, at one meeting I attended, when a board began to discuss the financial difficulties the facility it managed was having, the board went into executive session to discuss “personnel matters.” The procedures for entering into executive session were not followed and the reason was ridiculously inadequate. Clearly, the purpose of the executive session was to shield information from the public that the public had a right to know.

There are a number of things the legislature could do to make the Public Records Law and the Open Meeting Law more effective. There is proposed legislation before the Massachusetts General Court to do just that, but here are just a few suggestions that I have.

  1. Require that public officials who are covered by the laws receive annual training in what the laws require, with sanctions if they do not receive the training.
  2. Allow the imposition of significant fines if it is determined that the Open Meeting Law or the Public Records Law has been violated.
  3. Allow attorneys’ fees for successful claims that are filed in court.

I have a number of other suggestions for strengthening the public’s access to information about their government, but they will have to wait for another post.

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