This post originally appeared as an op/ed in the Worcester Telegram & Gazette and other Gatehouse Media newspapers. During Sunshine Week, NEFAC will be posting reports from each New England state, highlighting the need for government transparency and addressing freedom of information concerns. When posted, these articles can be read here.
By Justin Silverman
When Boston Latin Academy students Mabel Gondres and Shayne Clinton began researching ways to fund a new community rec center in Hyde Park, they turned to the state’s public records law. With the help of the Hyde Square Task Force, these teenage sleuths used the law to request information about a long-forgotten 1993 mandate that required the owners of TD Garden to hold fundraisers every year to benefit the city’s recreation department.
“We sent letters to the TD Garden and the state. For weeks they just ignored us,” Gondres explained. But then she and other volunteers began sending public records requests. “That is how we found out that TD Garden had not held one fundraiser and they had not raised one penny for 24 years,” she said.
The amount owed to the city? $14 million.
Gondres and Clinton shared their story last month during the New England First Amendment Coalition’s annual awards luncheon in Boston. Along with fellow honorees Jane Mayer of The New Yorker and Todd Wallack of The Boston Globe, these two students provided a prelude to Sunshine Week and a reminder of why government transparency is so valuable to our communities.
Sunshine Week, a national campaign every March to celebrate the public’s right to know, is an opportunity to assess local freedom of information laws, such as the Massachusetts public records statute. These laws intend to shine a light, or “sunshine,” on the work of government and to help citizens better understand what their elected officials are doing on their behalf.
In Massachusetts, the work of Gondres and Clinton stands out as a public records success story. But unfortunately such stories are rare. Despite recent changes to the public records law, there is still too much secrecy in the commonwealth.
After more than four decades without any major changes to the public records statute, the Massachusetts Legislature in 2016 reformed the law. The changes are both good (an attorney fee provision) and bad (longer response times). The most egregious part of the new law, however, is what didn’t change. Massachusetts continues to be the only state in the country where the Legislature, judiciary and governor’s office all claim to be exempt from the public records law. In other words, it took the state Legislature 43 years to pass meaningful public records reform and despite these changes most records are still kept secret.
This secrecy is a dangerous proposition. In 2014, for example, reporters in Virginia used the state’s public records law to uncover more than $177,000 in gifts and loans given to their then-governor in exchange for promoting a dietary supplement company. The League of Women Voters in 2015 used Florida’s public records law to obtain emails of state legislators showing that these representatives unconstitutionally remapped voting districts to benefit their own political party. If either of these scenarios were to play out in Massachusetts, our public records law would be of no help.
Major legislative reforms take many years to occur and there seems to be little political appetite for another one anytime soon. So what can be done?
First, we need to take advantage of the new attorney fee provision. This provision encourages attorneys to file lawsuits — litigation that would not otherwise occur — in hope of recouping legal fees and to push back against agencies that have up until now withheld records without consequence. As Wallack, of The Boston Globe, said during the luncheon, “Filing a lawsuit remains one of the best ways to hold agencies accountable and change the culture, change decades of tradition where agencies didn’t have to release records because nothing bad would happen.” The New England First Amendment Coalition now has a referral program that can connect record requesters with good cases to attorneys willing to represent them pro bono.
Second, we need to let our representatives know that the public records law still needs fixing. Along with the changes in 2016, the state created a commission to study how the statute could apply to the Legislature, judiciary and governor. The commission is led by state Rep. Jennifer Benson, D-Lunenburg, and Sen. Walter Timilty, D-Milton. We need to share our stories with them and demand the law be expanded. It doesn’t matter what additional changes we make to our current law — if it continues to exclude the most influential offices of state government, transparency will remain elusive.
Lastly, we need to remember that the public records law is not the exclusive purview of journalists and attorneys. It is a nonpartisan tool that can be used by all of us to make sure our tax dollars are well spent and our interests represented. It is a law that can be used by all citizens, even high school students like Gondres and Clinton.
The two students are continuing their campaign and are now submitting additional public record requests to learn more about the state’s relationship with TD Garden. Owners of the stadium paid only $1.65 million of the money the students say is owed. Still, using the public records law is an empowering experience they said. Clinton captured the spirit of Sunshine Week best:
“If we do our research and keep to the facts,” he said, “we can expose even some of the most powerful people in the country.”
Justin Silverman is executive director of the New England First Amendment Coalition.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
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