FOREWORD

The public records and open meetings laws of Massachusetts are among the weakest in any of the 50 states.  While it may be true that open government traditions in Massachusetts date back to colonial times, this “birthplace of democracy” today is led by a Legislature that operates largely in secret and a Governor who claims he is not subject to the state’s public records law. A 2008 nationwide study of public access to official records in the 50 states gave Massachusetts a failing grade of F.  (Better Government Association and National Freedom of Information Coalition, Results and Criteria of BGA/NFOIC Survey.) With respect to the Commonwealth’s courts and court records, where the public’s rights of access are the product of evolving judicial decisions supplemented by court rules, recent decades have seen a modest expansion of rights. When it comes to state, county, and municipal agencies, however, the public’s rights of access are more or less frozen in a motley collection of innumerable statutes, the most significant of which are the Public Records Law (codified at Chapter 66 of the Massachusetts General Laws (G.L. c. 66)) and the Open Meeting Law (G.L. c. 30A). 

Not only are those two statutes located in different parts of the General Laws, they have also evolved independently of each other. The Public Records Law, which is enforced by the Office of the Secretary of the Commonwealth, reached essentially its present form in the mid-1970’s. The Open Meeting Law was revised in 2010, at which time responsibility for its enforcement – previously shared by the Attorney General (for state agencies) and each county’s District Attorney (for county and municipal agencies) – was consolidated at the Attorney General level. 

There is considerable case law applying both the Public Records Law and the Open Meeting Law as they apply to state and local agencies. The court decisions tend to be brief and pragmatic; they are almost universally the product of statutory construction, rather than any separate body of judicially originated open government law. (In Massachusetts, legislative committee reports are uncommon and legislative debates are not reported. It is therefore unusual to find any meaningful record of legislative history to shed light on how a statute is to be construed.)

When challenged, both statutes are to be construed against a background presumption of openness (G.L. c 66, §10C (public records); 90 Code of Massachusetts Regulations (CMR) 32.08(4) (open meetings)).  But neither statute sets out substantial penalties against agencies that do not comply, with the result that there can sometimes be a substantial gap between what the law commands and what the government agencies do as a matter of practice.  That gap is widest, of course, in those areas where members of the public and the media have not been vigilant in holding the government bodies to account.

With respect to other access issues, the record is mixed.  There continue to be occasional cases of reflexive court closures or routine impoundment of documents (particularly in the probate and family courts).  Nevertheless, the Supreme Judicial Court has been receptive to hearing emergency challenges of lower court access orders.  Even when no third party has protested, judges in the Massachusetts federal district court and First Circuit Court of Appeals have expressed a conscious determination not to rubber-stamp litigants’ joint motions to seal court filings or settlement agreements.

The Commonwealth lags behind other states in the extent to which public documents are made affirmatively available online.  Federal court filings can generally be downloaded from public web sites; the equivalent state Superior Court sites generally provide online access to court dockets but not to individual filings.  The Supreme Judicial Court offers live and archived webcasts of oral arguments, and one trial court is experimenting with routine live-streaming of its proceedings; but the efforts of one federal district court judge to allow webcasting of a trial involving music downloading were unceremoniously rebuffed by the Court of Appeals.  Despite the availability of online legislative records, it takes a Kremlinologist to reliably follow a bill’s progress through the State House.  Gov. Patrick’s lackluster record on governmental transparency – including his office’s insistence that it can unilaterally exempt itself from the Public Records Law – has proved disappointing to many governmental watchdogs. 

PUBLIC RECORDS LAW

History and Scope.  Statutory provisions relating to public records go back more than 150 years, but early efforts were “limited and ‘disappointingly vague.’”  Suffolk Constr. Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444, 453 n.14, 870 N.E.2d 33, 40 n.14 (2007), quoting A.J. Cella, Administrative Law and Practice § 1161, at 488 (1986). See, for example, St. 1851 c. 161, § 4, which provided that "[a]ll county, city or town records and files shall be open to public inspection."

The statewide office of Commissioner of Public Records has existed since the 1890’s. St. 1892 c. 333, § 1. A definition of "public record" first appeared in 1897 but was essentially limited to "any written or printed book or paper or any map or plan of [a governmental entity] in or on which any record or entry has been or is to be made in pursuance of any requirement of law, or any written or printed book . . . which any officer or employee of the Commonwealth or of any county, city or town is required by law to receive." St. 1897 c. 439, § 1.  In other words, the public had a right only to those records that the government was legally required to keep.

A major change occurred in 1973, when the Legislature extended the definition of public records to include all records held by governmental bodies, whatever the reason for their creation, unless one of nine fairly narrow statutory exemptions applied. St. 1973 c. 1050.  The number of exemptions has doubled since then, but the basic structure of the law has otherwise remained the same.  The statute applies to all levels of governmental bodies (state, county, and local), but it does not cover records of the legislative or, generally, the judicial branches.  In recent years, the Governor’s Office has argued that the law does not even apply to the Governor, although the statute provides little support for that position.

Structure.  What is generally called the "Public Records Law" is found primarily in two chapters of the General Laws. The first is the definition of "public records," which appears in G.L. c. 4, § 7, cl. 26. The procedures for obtaining access to such records are set forth principally in G.L. c. 66, § 10(b). These latter provisions are supplemented by administrative regulations located at 950 CMR 32.01, et seq. (Copies of the statutory and administrative provisions are appended to this outline.)  Enforcement of the law falls, in the first instance, to the Division of Public Records of the Secretary of the Commonwealth, but direct appeal may also be made to the state courts. Alan N. Cote served as Supervisor of Public Records for 10 years until his untimely death, from cancer, in May 2011.  Since then, and pending the Governor’s appointment of a successor, the office has been led by Chief Legal Counsel Laurie Flynn. 

Frequently overlooked, however, are the scores upon scores of statutory provisions scattered throughout the General Laws declaring that certain particular categories of documents must be kept confidential, or are or are not to be deemed public records. Such exceptions and special rules are particularly common in the health and welfare areas, and their interplay with the provisions of the Public Records Law is sometimes far from self-evident.  The result is that while the Public Records Law provides a reliable gauge of the procedure to be followed when seeking public records, it is merely a starting point when it comes to determining exactly what records are indeed “public,” to what extent, and under what circumstances.

Over the decades, the public records statutes have been the subject of considerable judicial gloss. The cases repeat the fundamental presumption that records maintained in public offices are public. In the event of a dispute, the burden is on the custodian "to prove with specificity the exemption which applies." G.L. c. 66, § 10(c). Bougas v. Chief of Police of Lexington, 371 Mass. 59, 61, 354 N.E.2d 872, 876 (1976).

Interest Groups.  A number of Massachusetts organizations have advocated to strengthen the Public Records Law.  These include the Massachusetts Newspaper Publishers Association, New England Newspaper and Press Association, New England First Amendment Coalition, the Boston University Center for Investigative Reporting, the Civil Liberties Union of Massachusetts, and local chapters of the Society for Professional Journalists, Investigative Reporters and Editors, Massachusetts Public Interest Research Group, and Common Cause.  CommonWealth magazine has been particularly outspoken in reporting on the deficiencies of the state’s public records provisions.    

Advocates for limiting the scope of open government provisions and access to public records fall into three general categories. They are:

1. Certain public officials at both the local and state levels.  The level of compliance with the Public Records Law varies considerably from community to community. It is not unusual that municipal leaders will refuse to disclose certain public records despite warnings by their legal counsel that they are required to make the disclosure.  See, e.g., “Selectmen are Keeping their Mail Private,” Boston Globe, Nov. 6, 2010 (reporting that Town of Winchendon adopted policy that all mail to selectmen shall be confidential, despite town counsel’s warning that the policy violates the Public Records Law). The level of police department cooperation in some communities is of particular concern. The Supervisor of Public Records in the Office of the Secretary of the Commonwealth has generally been cooperative with the press and other advocates of open government, and has developed a considerable body of written administrative opinions on particular disputes and custodians of records.

2. Specific interest groups. These are generally groups that want one particular type of record removed from the public view. They are often successful. To cite a few examples, such groups succeeded in having the general definition of "public records" amended to exclude the names and addresses of persons holding any kind of firearms license, as well as the home addresses and telephone numbers of virtually every public employee in the state and many of their family members. G.L. c. 4, §  7 cl. 26(j), 26(o), 26(p).  Likewise, amendments to other statutes now require that: "[a]ll reports of rape and sexual assault . . . shall not be public records and shall be maintained by the police departments in a manner which will assure their confidentiality" (G.L. c. 41, § 97D); that no test for AIDS be made or disclosed without the patient's written consent (G.L. c. 111, § 70F); that public library records which reveal the identity and intellectual pursuits of persons using the library are not public (G.L. c. 78, § 7); and that the home addresses and telephone numbers of judges, prosecutors, law enforcement officials and crime victims are deleted from all public records (G.L. c. 66, § 10).

3. General privacy advocates. In Massachusetts, as in most other states, interest in limiting governmental intrusions into individual privacy has increased in proportion to the ease of widespread distribution of data over the internet. Privacy concerns led to passage of the Fair Information Practices Act (G.L. c. 66A), modeled in considerable part on the Federal Privacy Act, and the Criminal Offender Record Information Act (G.L. c. 6, § 167-178B,) which regulates the collection of criminal records and restricts their dissemination. There has also been considerable litigation over the scope of the privacy exemption to the Public Records Law and its interrelation with the general privacy statutes. G.L. c. 214, § 1B. See, e.g., Pottle v. School Committee of Braintree, 395 Mass. 861, 482 N.E.2d 813 (1985) (privacy of municipal school employees not invaded by disclosure of home addresses) (later overruled by statute, G.L. c. 4, § 7, cl. 26(o)).

OPEN MEETING LAW

History.  The first Massachusetts Open Meeting Law was enacted in 1958, largely at the insistence of the press and what is now the Massachusetts Newspaper Publishers Association. It was rewritten into substantially its present form in 1975, St. 1975, c. 303, then underwent a significant revision, effective 2010, when the state’s new Ethics Reform Act revamped the open meeting procedures without fundamentally affecting the underlying transparency rules. St. 2009, c. 28.

Summary.  The statute applies to meetings of multi-member “public bodies” at the state, county, and municipal levels.  This being Massachusetts, however, it excludes committees of the state Legislature and bodies appointed to advise the governor or other “constitutional officer.”  Bodies within the judicial branch are also outside of the statute’s purview.  Where it applies, the statute mandates notice and posting of meeting times; limits public officials’ deliberation of governmental matters outside of a public session; and mandates not only that minutes be kept, but that, in many cases, they be instantly available to the public upon request.  Parties claiming violation of the law may seek administrative enforcement by the Attorney General’s Office, or may file an action in court; additionally, public bodies may appeal an adverse AG ruling to the courts.  If a public body is found to have intentionally violated the statute, it may be assessed a civil penalty of not more than $1,000 for each such intentional violation.

Compared to the Public Records Law in Massachusetts, which contains only a portion of the state’s statutory provisions regarding access to records, the Open Meeting Law is far simpler to administer, because it largely occupies the field.  While there are a few other statutes permitting closure of meetings of particular kinds of committees for specific purposes, the state’s open meeting provisions are largely contained within the Open Meeting Law itself.  There are also “only” 10 enumerated purposes for which a meeting may lawfully be closed to the public, as opposed to the 18 exceptions (and counting!) within the Public Records Law. 

2010 Changes.  The most significant of the 2010 changes was to centralize enforcement of the law by transferring enforcement obligations from the state’s 11 district attorneys and consolidating it in the Attorney General’s Office.  G.L. c. 30A, § 25. The move was intended to remove inconsistencies in enforcement from one county to the next, as well as to provide more education and outreach to government officials statewide.  “Open Meeting Law Guide” (Office of Att’y Gen’l, July 1, 2010), at i.  One fortunate consequence has been that the provisions of the Open Meeting Law now appear in a single statute, G.L. c. 30A, § 19(a), instead of being distributed throughout the Commonwealth’s general laws, once for state governmental bodies (G.L. c. 30A, §§ 11A to 11A½), a second time for counties (G.L. c. 34, §§ 9F to 9G), and a third time for municipalities (G.L. c. 39, §§ 23A-C, 24).  In and of itself, that change is more optical than substantive, because the three separate laws had been virtually identical, and most of the case law involved disputes at the municipal level. 

The AG’s new “Division of Open Government” was created at that time in order to provide training, respond to inquiries, investigate complaints, and to make findings and take remedial action to address violations.  Id. at 1. In its first 12 months, the division (we’ll eschew the obvious acronym) investigated 116 complaints, resolved 51 cases (34 with formal determinations, another 17 informally), conducted or participated in 47 trainings, and reportedly fielded more than 2,000 inquiries.  (It also blew through two directors in the first year, and is now on its third, Amy Nable.)  See R. Ambrogi, “AG Releases Figures on First Year of Open Meeting Law, www.medialaw.legaline.com (June 29, 2011).  It also has a robust website that posts all formal determinations.  

Education and Training. According to the Attorney General’s Office, the revisions to the law in 2010 has brought a heightened emphasis on training of local officials.  Within two weeks of qualification for office, all members of public bodies must certify in writing: (1) that they have received the state’s packet of Open Meeting Law Materials (consisting of a copy of the statute, the Attorney General’s regulations under the statute, and certain educational materials prepared by the Attorney General’s office that explain the law’s requirements), and (2) that they understand the requirements of the statute and the consequences of violating it.  Beyond its precatory function, the certificate does not appear to create any independent obligations; it is to be filed and maintained in the records of the appointing authority or administrator of the body or agency in question.  G.L. c. 30A, § 20(g). 

Purposes. While the law has no formal legislative history or preamble, the state’s highest court has described its purpose as “eliminate[ing] much of the secrecy surrounding the deliberations and decisions on which public policy is based." Ghiglione v. School Committee of Southbridge, 376 Mass. 70, 72, 378 N.E.2d 984, 987 (1978). Interestingly, the Attorney General’s Office today uses less fervid prose, even suggesting that openness necessarily reduces the government’s smooth functioning.  According to the AG, the laws purposes are “to ensure transparency in the deliberations on which public policy is based” and “to balance the public’s interest in witnessing the deliberations of public officials with the government’s need to manage its operations efficiently.”  “Open Meeting Law Guide” (Att’y Gen’l’s Office, July 1, 2010).

Interest Groups.  As might be expected, this law has its opponents. They have sought in recent years to amend the statute, to seek broad judicial construction of exemptions for executive (closed) session and simply to evade it.

Privacy-interest proponents have been less active with respect to open meetings than with public records. Rather, opposition has centered in the following areas:

1. Officials, usually at a local level, who do not believe in the principles of open government. The most common techniques used to avoid or evade the statute are informal meetings to pre-decide issues, using executive sessions to discuss issues not within the statutory exceptions, and taking a very broad reading of the proper purposes for executive sessions.

2. Collective bargaining. Local officials and public employees organizations have been largely successful in having both collective bargaining and discussions of collective bargaining strategy limited to closed sessions. See G.L. c. 39, §  23B(3).

3. Personnel decisions and appointments. Disciplinary proceedings against public employees are normally conducted in executive session unless the employee objects. See G.L. c. 39, §  23B(l), (2). The appointment process has been more of a battleground. A screening committee is subject to the Open Meeting Law only if it is appointed by a governmental body (such as a school committee, as opposed to a school superintendent). Even where the Open Meeting Law applies, the screening committee may operate in private only up to the point of conducting a preliminary screening of candidates to recommend to the appointing authority, and even then only if the committee has found that "an open meeting will have a detrimental effect in obtaining qualified applicants." (G.L. c. 39, §  23B(8); Gerstein v. Superintendent Search Screening Committee, 405 Mass. 465, 471-2, 541 N.E.2d 984, 987-8 (1989); Connelly v. School Committee of Hanover, 409 Mass. 232, 237 n.7, 565 N.E. 2d 449, 451 n.7 (1991).) The present position of most municipalities is that only "finalists" need to be publicly identified and interviewed.

Others have sought to strengthen the law, seeking unsuccessfully to enact provisions that would provide attorney fees for successful challengers of the law, would make knowing and intentional violations a misdemeanor, and would fine any public official who attends an illegal executive session.