Transparency in Massachusetts: An Unfulfilled Mandate, Not an ‘Unfunded’ One

sunshineweeksunThe following blog post is one of six that the New England First Amendment Coalition will publish during Sunshine Week, highlighting the need for government transparency and addressing freedom of information concerns throughout the New England states. When posted, these articles can be read here.

By Shawn Musgrave
New England Center for Investigative Reporting

In the past year, the Massachusetts legislature took baby steps toward letting our toddler of a public records law grow some teeth. Government officials and their lobbyists quickly blasted proposed reforms as creating an “unfunded mandate” that could bury town halls under costly administration and lawsuits.

But government officials in the Commonwealth already have a clear mandate to release documents and data to the public. This obligation dates back more than a hundred years in Massachusetts law. The problem is not that this mandate is new or unfunded, but that it is unfulfilled, and often brazenly so.

This week is Sunshine Week, a time each year when advocates for public accountability assess progress toward prying open the government, and chart what progress remains. In Massachusetts, the list of needed fixes is long. It’s far too easy for official misconduct and incompetence to hide behind our weak public records law.

Any reporter, policy researcher or nosey citizen will complain about the infuriating difficulty of asking for government records in Massachusetts, whether it’s routine police reports or the Boston mayor’s texts about the Olympics bid. Ask bewildered transplants from Florida, Texas, or Ohio, and they’ll tell you just how far the Commonwealth lags behind other states.

Massachusetts received a failing grade on public access to information in a national evaluation last fall by the Center for Public Integrity. The Boston Globe found that Massachusetts is the only state where the legislature, judiciary and governor’s office all claim to be exempt from the law.

A thorough audit of all 351 cities and towns in the state corroborated complaints about outlandish fees and sluggish replies, even when asking clerks for basic records. More than a dozen communities in the Commonwealth refused to provide a municipal payroll or the police department’s policy on use of force. Another two dozen demanded upward of $100 to release payroll data.

The town accountant in Spencer told student reporters at Northeastern University, who conducted the audit, that it would take 40 hours of work to compile and release the payroll report, at a cost of $1,440.

Such obstructions abound. In my own reporting on police over the past year, I’ve faced the full range of indefensible denials, unacceptable delays, and all-around failures of accountability that our anemic public records law allows.

Last summer, for instance, the Cambridge police refused to give me their use-of-force policy. A month earlier, a White House task force called on law enforcement to open up these policies so that communities can understand the circumstances under which officers may fire their guns, use their batons, or restrain people. Constituents cannot weigh in on police standards if they’re not allowed to read them, after all.

A provision in the New York Police Department’s use-of-force policy that forbids use of chokeholds was a critical part of the national reaction to Eric Garner’s death during a police stop in Staten Island. The NYPD — a notoriously opaque agency — released their use-of-force policy in its entirety.

But Cambridge police denied my request on shaky grounds. Department spokesperson Jeremy Warnick asserted that releasing the policy would hamper investigations, adding that, “more importantly, officers following these policies and procedures may also be placed at risk when engaging dangerous suspects.”

Only after I wrote about the department’s stance for MuckRock and The Boston Globe did Cambridge police change its stance and post the policy online.

“The Cambridge Police Department recognizes and respects the public’s desire for transparency within government agencies,” the department wrote in an online statement that accompanied the policy’s belated release. “We believe that transparency can reinforce trust between the police and the communities they serve.”

Transparency certainly fosters trust in government, but only if officials fulfill their transparency mandate.

The Boston Police Department fought for most of the past year to withhold documents about its use of cellphone trackers. It took two appeals to the secretary of the Commonwealth to obtain an agreement that the BPD signed with the FBI which forbid police from disclosing information about the technology in court proceedings.

The Massachusetts State Police, meanwhile, have twice rejected requests for reports from an officer-involved shooting on the Esplanade in Boston last June. Six months after the suspect was killed, state police officials considered the matter to be an “ongoing investigation” that might be jeopardized by release of the reports, including factual portions that have already been outlined in public statements.

It’s not only police who routinely fail to fulfill their transparency mandate.

In the past year, fellow reporters have had to pay thousands of dollars to the state Department of Children and Families for records on children who died due to abuse and neglect; have fought the MBTA for a key consultant’s report on the Green Line extension; and have sued the Department of Corrections for the booking log that it already provides to a for-profit database company.

Our public records law is inadequate to correct such failures. In its current form, the statute includes few incentives for officials to hand over anything they don’t want to release, and allows agencies to charge unreasonable fees. Concurrently, the law offers only weak tools for the public to prod agencies into compliance.

Reforms currently under consideration on Beacon Hill would strengthen the law, particularly by making the government responsible for legal costs when it takes a lawsuit to obtain records. Massachusetts is one of only three remaining states where plaintiffs cannot recoup costs in suits for government documents. This unacceptable imbalance means that errant officials withhold records with confidence, knowing that most people cannot afford a court battle.

The Massachusetts Municipal Association, which lobbies on behalf of city and town governments, has pushed back vocally over the past year against such a change in the law, as well as against reasonable limits on fees. The MMA’s position has softened in recent months, but the organization still describes much-needed overhauls in terms of “unfunded mandates.”

“The measure would impose an unrealistically heavy administrative burden on cities, towns and smaller public entities, impose unfunded mandates on communities, and expose public entities and taxpayers to threats of expensive litigation,” wrote Geoffrey Beckwith, MMA executive director and CEO, in February about a reform bill that passed the state Senate. The MMA is pushing the legislature to adopt provisions from the House bill, which it views as more flexible and less costly.

Such wailing presumes that lack of transparency in Massachusetts springs from funding shortfalls. This is not so. The more fundamental issue is that our elected and appointed officials habitually fail or refuse to disclose what belongs in the public sphere. Their misdeeds are emboldened by a pitiable enforcement framework that’s decades behind best practices.

It is unfulfilled transparency mandates that are the obstacle to government accountability in Massachusetts, not unfunded ones.

Shawn is a reporter for the New England Center for Investigative Reporting.

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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.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here. Major Supporters of NEFAC for this year include: The Providence Journal Charitable Legacy Fund, The Boston Globe and Boston University.

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