In Mass., public records law exempts governor
BOSTON — To non-lawyers, the state’s public records law seems fairly straightforward.
The law covers a broad array of documents made or received by “any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth.”
Among those who say they aren’t covered by the law is Democratic Gov. Deval Patrick.
Patrick has followed the lead of other recent governors, including Republican Mitt Romney, in claiming the governor’s office is exempt from the law by pointing to a 1997 Supreme Judicial Court ruling.
The Patrick administration is quick to point out, however, that despite the exemption, Patrick makes every effort to respond to public information requests.
Patrick is committed to building an open and transparent government including “responding to public records requests in accordance with state law,” press secretary Heather Johnson said.
“This administration has set an example of making government accessible and accountable to the people of Massachusetts,” Johnson said in a statement.
Still, critics say the public shouldn’t have to rely on the governor’s judgment but instead should have a right to the information.
“We think the law should cover the governor’s office and the Legislature,” said Pam Wilmot, president of Common Cause Massachusetts, a government watchdog group.
Sen. James Eldridge, a Democrat from Acton, agrees the governor and the Legislature shouldn’t be exempted from the public records law. Like Wilmot, he also concedes that persuading lawmakers to subject themselves and the governor to the law is a tough sell.
“That’s why I’m focused on making it easier to gain access to documents under the public records law,” he said.
Eldridge is sponsoring a bill, backed by Wilmot’s group and the American Civil Liberties Union of Massachusetts, that supporters say would lower barriers to obtaining public records under the current law.
The legislation would make electronic records the norm instead of paper records, require more information be posted online and allow courts to award attorney’s fees when agencies block access to information. It also would limit how much agencies could charge for documents.
House Speaker Robert DeLeo declined to say whether he would support bringing the Legislature and governor under the umbrella of the public records law, but he said he’s willing to look at Eldridge’s bill.
“We’ll have the hearing on that legislation at which time I’d be happy to discuss that,” said DeLeo, D-Winthrop.
Nationally, states have a range of policies when it comes to access to governor’s records, from states where nearly all of a governor’s records are considered public to states where they are exempted from public records laws.
The Massachusetts exemption stems in part from a 1997 court ruling, Lambert v. Executive Director of the Judicial Nominating Council, which asked whether a questionnaire submitted to the council by a judicial applicant is a public record.
The court found that since the council is an “interviewing and screening body whose sole purpose is to assist the governor” its records are essentially the governor’s records. It went on to conclude that since the state’s public records law doesn’t expressly include the Legislature, judiciary or governor there is “no merit” to the argument that the questionnaire is a public record.
The ruling has since been interpreted to mean the governor is exempt from the public records law.
In 2011, Romney acknowledged that just before he left office he authorized a sweeping purge of electronic data from his executive office, allowing top aides to purchase and remove their computer hard drives.
Romney also sent 600 boxes of materials to the Massachusetts archives, but a weeklong examination of those by The Associated Press last year didn’t turn up any email or internal document authored by or sent to him.
One loophole to the Lambert ruling appears to be emails sent to or from the governor’s office to other entities like executive department agencies, which are subject to the public records law and whose emails can be obtained by a public records request.
At least one national open-government advocacy group has taken a dim view of Massachusetts’ efforts to make public records available.
The Washington-based Sunlight Foundation gave the state an F after rating legislative websites on factors such as completeness of the information on bills and votes and whether information was preserved for future viewing.
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