“Mind-bending word-parsing”

by

By Bruce Mohl

The Massachusetts Public Records Law isn’t working and needs an overhaul.

As Colman Herman writes in the latest issue of CommonWealth magazine, too much of state government is exempt or claims an exemption from the Public Records Law and many agencies that are subject to the law have found too many ways to avoid complying.

It’s as if a law meant to level the playing field between citizens and their government officials has been tilted heavily in favor of the government officials. The Legislature exempted itself from the law in 1897 and the judiciary and the governor, citing court decisions, claim they are also exempt. Those parts of government that are subject to the law often ignore its requirements, charge excessive amounts of money for records, or simply drag their feet so long that most citizens give up.

Governor Deval Patrick’s aides say he voluntarily complies with most records requests, but his claim that his office is exempt from the law is disturbing. The claim is based on a 1997 court decision that hinged on whether a personal questionnaire submitted by an applicant for a judicial appointment was a public record. The court held the record was not public because the governor was not included by name in the definition of who is covered by the Public Records Law.

These sorts of loopholes – real or contrived – need to be closed. It may make sense to shield certain communications by lawmakers, judges, and the governor from public scrutiny, but everything shouldn’t be off limits. Citizens should be able to find out how government officials are spending their tax dollars no matter what branch of government it is.

We should also be encouraging government officials to put more information online and to become as transparent as possible in the way they spend money and make policy.

Another problem with the Public Records Law is weak enforcement. Secretary of State William Galvin oversees the Public Records Law but has no power to enforce it. Enforcement is left to Attorney General Martha Coakley, who often doesn’t see eye to eye with Galvin’s office. Many of the disputes are legitimate, but some are the result of mind-bending word-parsing.

For example, Galvin’s office has held that there’s little it can do if a government official just ignores a public records request. The office believes that it can’t rule whether a document is subject to the Public Records Law unless it has a chance to first review the document – and it cannot review a document if the agency that has it does not formally reject a public records request. But since the attorney general has refused to order the release of documents unless Galvin’s office first rules them public, Galvin’s aides are left in a Catch-22 situation where they feel they can do nothing.

The Massachusetts Public Records Law is broken. It needs to be fixed.

Bruce Mohl, a fomer investigative reporter and editor at the Boston Globe, is editor of CommonWealth.

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