Sunshine Week has concluded its annual review of government transparency, noting which states score highly in government accessibility and which do not.
Some Massachusetts state agencies, like the Office of the Comptroller and the Secretary of State’s Public Records Division, showcase their transparency efforts and, in the latter’s case, share their data. Other areas of Massachusetts state government are less open, inviting criticism and calls for reform.
Sunshine Doesn’t Reach the Statehouse
A frequent complaint is that elected lawmakers can vote in secret, leaving voters uninformed about where their Representatives and Senators stand on particular issues. An article in the Eagle Tribune (paywalled) pointed out that legislative roll call votes have been decreasing since the 2017 - 2018 legislative session while unrecorded voice votes have increased.
Other criticism notes that the Public Records Law does not apply to the Judiciary, the Legislature, or the Governor’s Office, though Governor Healey has vowed to “follow the public records law and provide more transparency to the Governor’s Office than ever before.”
Similarly, the Open Meeting Law exempts “the Legislature, its committees, bodies of the judicial branch, and bodies appointed by a constitutional officer solely for the purpose of advising a constitutional officer.” It is notable that any state resident (or out-of-state resident, for that matter) may attend public meetings in any of the state’s 351 municipalities, but are limited by House and Senate rules regarding meetings of their state legislature or its committees.
The surreptitious state Legislature has also put the kibosh on State Auditor Diane DiZoglio’s plan to audit their performance. In her letter to the Massachusetts Attorney General’s Office, Auditor DiZoglio noted the refusal of both the House Speaker and Senate President to comply with the March 2023 audit announcement and asked for the Attorney General’s support in the matter. Last November, the Office of the Attorney General replied that the law does not require the Legislature to submit to an audit.
In their response letter, the Attorney General’s Office noted that past State Auditors have also been forced to acknowledge the restriction on their power to audit the Legislature. In particular, the letter notes that the Legislature is not considered a “department” of the commonwealth as described in the statute that enables the State Auditor to conduct audits. The letter also notes that the State Auditor’s annual financial reporting duties were transferred to the (then) newly created Office of the Comptroller in 1922, which explains why the last audit of the Legislature occurred in that year.
Lifting the Veil of Secrecy
There has been pushback to the exempt status regarding transparency and accountability enjoyed by the three branches of state government. Three bills active in the current legislative session could make all branches of state government more accountable to the public. Letting our legislators know we support these efforts will help move these bills closer to a vote (see details at the end of this post).
Bill S.1963, also known as the “Sunlight Act”, would require public testimony at legislative committees to be made available to the public and require the recorded votes of legislative committees to be posted online within 48 hours of the votes. It would also subject the Governor’s Office to the Public Records Law.
Bill H.3121 would remove the Legislature’s exemption from the Open Meeting Law, allowing citizens to attend all legislative proceedings.
Bill S.2064 would subject the Legislature and the Governor’s Office to the Public Records Law.
Auditor DiZoglio’s initiative petition to add language to state law that would allow her office to audit the Legislature was certified by the Attorney General’s Office last September. The measure collected over 100,000 signatures by November; 74,574 valid signatures are needed for the question to be placed on the ballot this November.
Public Records Division Statistics for 2023
Since reforms to the Public Records Law took effect in 2017, public records requests are submitted to Records Access Officers (RAOs), such as the Town Clerk, who face time and fee-charging restrictions. RAOs are also required to keep a log of the number and type of each request.
Each year during Sunshine Week the Public Records Division publishes its work record for the previous year. This year’s report features some nice graphics explaining what the Division has accomplished in 2023. I’ve reproduced some of them here.
Appeal Cases closed in 2023, by type
Fee petitions and Time petitions are filed by RAOs requesting permission to charge extra fees to process requests or for extra time to respond to record requests;
Reconsiderations are filed by requestors who wish the Supervisor of Records to revisit their prior determination;
In-camera reviews occur when requestors believe they have been denied records in violation of the law and petition the Supervisor of Records to inspect such records and render a determination.
Appeal Cases Opened Annually 2013 - 2023
Appeals by Type: Substantive v. Non-Responses
Substantive appeals are those where the requestor finds the response to their unsatisfactory in whole or part;
Non-response means the requestor received no response from the RAO during the statutory period of 10 business days.
Total Number of Records Requests Filed Between 2017 - 2023
These numbers represent Massachusetts agencies (not municipalities) only.
The Public Records Law and Open Meeting Law are used by individuals and organizations to shed light on the workings of local and state government and should apply to all branches of government. Let your legislators know you expect them to respect your right to know and to support bills S.1963, H.3121, and S.2064.
