Yesterday, the Massachusetts legislature did something historic: both chambers unanimously passed significant public records reform legislation. Now the Governor has the opportunity to push the reform effort over the finish line and make it the law of the land. It’s not an exaggeration to say that our public health, safety, education, civil liberties, and even democracy are at stake.
Until now, Massachusetts has ranked among the worst in the nation on government transparency. The Center for Public Integrity gave us a blazing red “F” in its most recent assessment of government openness nationwide. Our public records law hasn’t been reformed in 40 years. Now, Governor Charlie Baker has an unprecedented, once in a lifetime opportunity to fix that crisis in basic democratic governance. He must seize it.
The reform that awaits Governor Baker’s signature would bring our state public records law into the 21st century and address the core problem with the existing statute: it’s toothless. If approved, the new statute will make it much more difficult—and costly—for public agencies to flout the law and ignore or stall public information requests. Old information isn’t useful to journalists and advocates. We need to know what happened last week, and we can’t wait three years to find out. Until the Governor signs the reform into law, we remain at the mercy of government bureaucrats to decide whether or not they feel like making public information available in a timely manner.
Public records and government transparency seem like dull, academic issues. In fact, government openness touches on all areas of our lives—and secrecy hurts us in unexpected ways. You’ve probably heard of the Flint, Michigan water nightmare. But did you know that the political scandal underlying the disaster in Flint was only revealed after the ACLU of Michigan filed public records requests for officials’ emails?
Or how about the stop and frisk crisis in New York City? Black and brown people in New York knew they were getting stopped for ridiculous reasons, illegally, and all the time. But without the hard data showing how many times over how many years police officers stopped Black and brown New Yorkers absent any constitutional justification, policymakers didn’t act. It was only after public records revealed the extent of the problem that a judge ordered the NYPD to change its practices. By 2014, stop and frisks in New York had plummeted 93% from the level they’d reached during the height of the crisis under the Bloomberg administration.
In Massachusetts today, as in states nationwide, the political winds are shifting away from the drug war and mass incarceration, towards public health investments and other solutions outside the criminal punishment system. These are serious, deeply entrenched problems demanding revolutionary thinking. But it’s hard to solve problems we don’t fully understand. Without timely access to information about who is getting arrested, prosecuted, and sentenced for what kinds of offenses in which communities, or how much money we are investing in treatment as opposed to prisons, we don’t have the information we need to successfully address issues like drug abuse, mass incarceration, or police practices. We can’t make good policy in the dark.
Moreover, the failed public records law has produced a giant time suck for advocates and journalists seeking public information. At the ACLU of Massachusetts, precious legal resources that could and should have been dedicated to expanding civil liberties and rights have in recent years instead been diverted to litigating public records requests. Even when we won these cases, hundreds of hours of our attorneys’ time was spent preparing briefs and motions in lawsuits we never should have had to file.
Countless other times we didn’t litigate public records requests that went unanswered or were illegally denied, simply because we didn’t have the resources. In our office, we became all too accustomed to giving up on our quest for public information if we didn’t have the time or the money to sue for it. “Are we going to be able to sue for this information or should I just drop it?” was a question we asked far too often.
The public records reform will change all of that. Thanks to a clause in the reform law that provides attorneys fees to successful litigants, we hope to spend far less time suing public agencies that brazenly flout the law. Instead of wasting time suing the government to get public records, our lawyers will be able to do what they really want to do, and what they do best: expanding constitutional rights for all Massachusetts residents and the people who live within the region covered by the First Circuit Court of Appeals.
It’s simply not possible to successfully demand change if we don’t know what the government is doing. That’s especially true when it comes to secretive government surveillance, such as police acquisition and use of stingrays or license plate readers. Too often, government agencies seek to keep public information secret from the people. The law should make it difficult for them to do that, not facilitate the secrecy.
Abuse, mismanagement, waste, and fraud fester in the dark. Public records reform is a key step towards living in a society that works better for everyone.
Until now, the woefully obsolete public records law in our great state has obstructed journalists from telling us the truth about how government spends our money, wasted everyone’s time, and blocked advocates from making convincing policy arguments based on the most recent information. Thankfully, after both chambers of the legislature yesterday unanimously supported reform, that is finally about to change—but only if the Governor signs the bill into law.
Take action now to tell Governor Baker to sign the public records reform bill, so we can get on with the business of making our state more just, more free, and more fair for all of its residents.