Guest MINDSETTER™ Andrew Goodrich: MA’s Public Records Crisis

Thursday, July 30, 2015

Guest MINDSETTER ™ Andrew Goodrich

There’s a public records crisis in Massachusetts. Under the current rules, when one requests a document, the government agency that has it usually demands a huge fee to process the records or says it will take an excessively long time to produce the document. Often, people seeking public records need to wage expensive legal battles to get basic information. For example, the Massachusetts State Police tried to charge an attorney $2.7 million for the state’s breathalyzer records. This creates an uneven playing field for people trying to keep government honest – they can’t acquire the information they need to let voters know what elected officials are doing.

The legislature has finally decided, after criticism from the Boston Globe and other media outlets, to update our broken public records laws. Unfortunately, their solution falls well short of the comprehensive reform Massachusetts needs.

The legislature’s proposal caps the maximum fee agencies can charge for public records, requires agencies to have an employee devoted to answering public records requests, and allows judges’ to award legal fees to people who were unfairly denied public records. These reforms are an improvement from the current laws, but hardly grounds for celebration by transparency advocates.

The problematic dynamic of public records requests – where requestors bear the burden of knowing what specific documents they want and then proving the documents should be disclosed – won’t change.

Massachusetts should move toward a new dynamic where information is shared pro-actively. There shouldn’t even be a fight over records. The records should already be available online for people can search at their leisure. This means adopting electronic record storage across state agencies and being aggressive at giving the public information they might want.

Why does this matter?

Partly because a requestor doesn’t always know exactly which person or document was involved in a key decision or policy. For example, we have constantly heard refrains over the past few months that the MBTA has been ‘mismanaged’. Yet I haven’t heard anyone, on either side of the aisle, state specifically what management decisions were wrong and when they were made. If all of the data of key policy decisions, management policies, and service goals were public we could retroactively research what worked and didn’t work. If we had more transparency, newspapers, nonprofits, and academic experts could join the state in sifting through the data to help fix the MBTA. This policy would help ensure the state doesn’t repeat bad mistakes again and again.

Each state agency should be able to determine proactively what information people might find helpful or interesting. There is no reason why it should take a FOIA to get more detailed homeless data, contracts, government management documents, or even details on housing authority executive directors. We live in the information age, and that data should be available prior to asking for it.

Big Data is revolutionizing businesses from retail stores to law firms, and the Massachusetts government should adopt the mindset of making information public first. Rather than focusing on making a bad system a little bit better, the legislature should focus on creating a new, forward-thinking system that would make Massachusetts a national leader on transparency.

The Boston Globe has reported on states that have a modern public records system that discloses information. They found that the disclosure rules were not a burden, even for states like West Virginia that have fewer municipal employees than Massachusetts. In Naples, Florida, the city has moved away from the old, expensive system of filtering public records request through a dedicated attorney. Instead, they’ve trained all their employees to help give information to the public. There’s no reason Massachusetts cities and towns can’t copy what Naples has done.

Regrettably, people who should support a move towards transparency are content with the current half-measure solution. Pam Wilmot of Common Cause, a nonprofit focusing on government accountability, called the legislature’s proposal “a fantastic bill [that] has essentially everything we wanted.” That’s the wrong attitude for holding government accountable. The current legislation still exempts the legislature from reforms, again showing no real appetite for meaningful change.

The Massachusetts Municipal Association, which represents town and city employees, has likewise opposed transparency reform, delaying even the half-hearted current proposal until September. They argue that a system where disclosure is the norm would be an unfunded mandate. In reality, the reform would be cheaper than the current adversarial disclosure system. The government would no longer need to waste time and resources sifting through vast piles of records in response to a request. Instead, they would develop a system that automatically puts information online and then simply sit back and let the public browse it at their leisure. This would free up municipal workers to focus on serving the public.

While the current legislation is an improvement on the current situation, transparency advocates shouldn’t kid ourselves into thinking this a complete solution. It’s just making the problem a little less expensive not solving the root issue. We should demand more from our political leaders.

Andrew Goodrich is the executive director of Massachusetts Citizens for Jobs