Sunshine Week 2024 Wrap-Up: How Massachusetts Fared

 

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. 

Financial Transparency Platforms Give Citizens Insight into Municipal Spending

My last post on municipal transparency noted that most, if not all, Massachusetts cities and towns post financial information such as annual budgets on their websites. Budgets help residents understand how their municipality plans to spend their tax money, but circumstances may change during the fiscal year and budget modifications often occur. Most of us don’t learn of these changes until the next year’s financial statement is posted, showing the actual amounts spent over the previous year.

For residents, tracking municipal expenditures online can increase their engagement with local government. It can also help them better understand the scale and scope of the work involved in running a municipality.

For city and town officials, providing this extra layer of transparency builds trust and enhances communication between themselves and the communities they serve. 

OpenCheck, one of several financial transparency platforms, can help.

What is OpenCheck?

OpenCheck LLC is a local company that offers a software platform tailored to municipalities. The interface is easy to navigate and gives users ready access to how and where tax dollars are being spent. Helping local governments with fiscal transparency is its primary mission.

While researching this subject, I ran across some Western Massachusetts municipalities featuring the OpenCheck system: Northampton, Chicopee, and East Longmeadow. I decided to give the fiscal transparency section of Northampton’s website a spin.

Clicking on the “Open Checkbook” link brought me to a user-friendly page with dropdown boxes that allowed filtering the results by Category, Department, and Date. A handy pie chart to the right of these options displayed the chosen department’s spending with each vendor. Mousing over each section identifies the dollar amount spent and its corresponding percentage of the total budget. 

Northampton’s OpenCheck webpage is up-to-date, with the latest entries dated March 1, 2024, when I visited on March 11, 2024. The detail of this publicly available information is amazing. Not only are departments and vendors identified and transactions given a brief description, but the check amounts and numbers are listed for each entry. Users can also export the data if they choose.

Compared with simply reviewing the annual expenditure totals listed in year-end reports, the OpenCheckbook allows residents as well as town officials to drill down into municipal spending and track how and where their tax dollars are being spent.

A Brief Chat with Mike Olkin of OpenCheck LLC

Wanting to learn more, a friend and I spoke with Mike Olkin, founding partner of OpenCheck LLC. Mike gave us an overview of the platform and answered our questions. Here are the highlights of our conversation.

Q.: Does OpenCheck showcase only municipal expenditures or does it include revenues, too?

A.: The platform shows only expenditures (accounts payable). For municipalities wanting accounts receivable and/or open budgeting capabilities, other providers such as OpenGov and ClearGov can be used.

Q.: How many cities and towns are currently using your product?

A.: We serve the municipalities of Arlington, Chicopee, East Longmeadow, Gardner, Leominster, Northampton, Oxford, and Wakefield.

Q.: What are the benefits of using OpenCheck for municipalities? What reasons do they give for their interest in purchasing your product? 

A.: They see transparency and trust building with the public as primary motivators. The platform also increases accountability among those making and carrying out procurement decisions. Saving staff time is another benefit. With a user-friendly interface, staff outside the finance department who may need this information can access it easily and quickly. Public records requests regarding finances decrease as citizens find their questions answered with a few mouse clicks.

Q.: What are the steps to set up an account with OpenCheck?

A.: The platform is customized to each municipality. The categories and departments, for example, are chosen by the customer. During account setup, we work with the municipality to create a weekly report that is automatically uploaded to the server and stored in the cloud. This keeps the data fresh.

Q.: Are there specific types of municipal finance software needed to use your platform?

A.: We have worked with both VADAR and Munis, but we can adapt to any system.

Q.: Can you give an estimate of what such a platform would cost for the town of Shutesbury?

A.: Pricing is correlated with population size. A rough estimate of pricing for Shutesbury would be around $6,000 for the initial setup and an annual maintenance fee of about $1,200.

For municipalities that want to offer financial transparency and foster trust and confidence between local government and the public, OpenCheck’s platform offers a user-friendly and affordable solution. 

Checkbook image courtesy of ClipArt Library

How Transparent is Your Local Government?

Government transparency is evolving as the internet makes sharing information simpler and more user-friendly. Local government, in particular, has become more open and accountable as residents can now explore the websites of all 351 Massachusetts municipalities. 

Local government transparency has come a long way since 2010, the last year that Common Cause Massachusetts rated municipal websites. Back then, the organization awarded its “e-Government Award” to 180 municipalities that published its chief executive body’s meeting minutes and agendas, as well as town budgets, bylaws, and town meeting warrants (if applicable). Posting additional information such as minutes and agendas of other boards and committees earned a city or town extra accolades. The Town of Shutesbury did not make the list in 2010.

These days, posting this type of information on municipal websites is commonplace. Less often, municipalities follow the letter of Massachusetts law concerning the types of data the public has a right to access on their city or town’s website. 

Public Records Law Requirements

The most recent Guide to the Massachusetts Public Records Law lists (on pages 9 and 65) several categories of records that should be posted on state agency and municipal websites. These items include:

• Final opinions, decisions, orders, and votes from proceedings;

• Annual reports;

• Notices of hearings;

• Winning bids for public contracts;

• Awards of federal, state, and municipal government grants;

• Minutes of open meetings;

• Budgets;

• Any other information deemed important and appropriate by the municipality.

This sounds like a lot of information to keep up with, but looking closely shows that much of this data is already commonplace on most municipal websites. A quick internet search of Massachusetts cities and towns will produce pages of results showing that annual reports are listed on most, if not all, municipal websites. The same is true of meeting and hearing notices, minutes of open meetings, and budgets. 

Where some municipalities are less compliant is in the following areas:  (1.) decisions and votes of the governing body (the law doesn’t speak to which decisions, votes and orders must be published); (2.) bid documents for public contracts; and (3.) a list of grants received from federal, state, or local sources.

Why are These Postings Important?

Posting relevant votes of bodies like the Select Board and Finance Committee conspicuously on a town’s website gets important information out to the public quickly and efficiently. This would be especially helpful if such votes were posted before approval and publication of meeting minutes (a sometimes lengthy process), though the law doesn’t speak to that issue. Many residents don’t have time to attend all municipal meetings and a “cheat sheet” on a town’s homepage would keep citizens informed.

Listing successful bids demonstrates financial transparency and informs citizens about significant local projects. Taxpayers have a right to know how and why public money is being spent. Publishing this information gives residents a level of detail they are unlikely to obtain from live meetings or meeting minutes.

Publishing grants received by the city or town should be a no-brainer.  Doing so showcases the hard work performed by town officials to bring extra funds into municipal coffers. It is wonderful public relations for cities and towns that has no downside whatsoever.

How Local Websites Stack Up

I checked Shutesbury and a few other local websites to see how common it is to post votes and decisions, successful bid documents, and grants received by the city or town. If not immediately apparent, I checked the site index or searched the website to unearth these postings.

Shutesbury does not list any of the above postings on its website.

Looking at our neighbors of similar population size, Wendell also had none of the above postings. 

Leverett, however, had votes and decisions parsed from board and committee meeting minutes available on its homepage. I used the search function to locate bids, which brought up snippets of minutes from various town committees. Sometimes a text box would follow these snippets and mention a motion made that involved a bid or RFP. There is no specific listing of bids or grants received by Leverett.

 Pelham does not list votes and decisions on their website. I located a “Grants” page under the “About Pelham” tab. A “Procurement” page is also available though it simply states, “Nothing at this time.”

The Erving website does not list votes and decisions. However, at the top of the homepage is an “Open Bids” tab that can be used to find all open and closed bids from 2018 to the present. I had to dig a bit, but found a link to a page called, “Grant Information” on the “Administration and Select Board” page that lists all grants from Fiscal Year 2022 to the present.

Can our small towns do better at fulfilling the posting requirements of the MA Public Records Law? Yes. While a quick internet search shows that bid and grant listings are more common on the websites of cities and large towns, small towns can easily add this information to their websites. Keeping up should be relatively simple since there are fewer items to post in each category in smaller towns like Shutesbury. Making this information available to the public on a website will reduce town employee time spent responding to public records requests.

Meanwhile, interested citizens can access CommBuys, Massachusetts’ procurement system, to search for available and past bids in any city or town.

Government Transparency Upon Request: Using the Massachusetts Public Records Law

The investigation into Title IX violations within the Amherst-Pelham Regional Public School system (ARPS) revealed ugly truths about the behavior of some school staff toward transgender and non-binary students as well as school officials’ failure to address complaints. 

If not for an information request and subsequent appeal under the state’s Public Records Law by Scott Merzbach of the Daily Hampshire Gazette, the Title IX reports commissioned by the school district would not have been made public. The feeling expressed by the ARPS Interim Superintendent at the September 19, 2023, joint meeting of the Regional, Pelham, and Union 26 School Committees was that the School Committees and the public “will have to trust” that school officials with access to the reports “are taking appropriate actions.”

The Gazette published an article on November 17, 2023, that summarized highlights of the reports and links to the redacted reports. I read portions of three of the five reports, and the behavior described is shocking.

The Public’s Right to Know

In the determination letter that forced the ARPS School District to release the reports requested by Mr. Merzbach, Supervisor of Records Manza Arthur observes that the Public Records Law presumes that “all governmental records are public records” unless covered by a statutory exemption. In this case, the District cited Exemption (c) [MGL c.4, §7(26)(c)], which pertains to personal privacy, as the reason for non-disclosure.

Ms. Arthur noted that issues of privacy must be weighed against the public interest in “knowing whether public servants are carrying out their duties in a law-abiding and efficient manner”. She decided that in this case, the District had not proven that the records contained the level of personal details that would prevent disclosure, and ordered the release of the reports.

The Strengths and Shortcomings of the MA Public Records Law

The Massachusetts Public Records Law is an important and useful tool to enforce state and local government transparency, yet it is not widely understood. This Guide is an excellent source of information on the Law, and the Secretary of State’s website provides links to helpful features such as the Public Records Request/Appeals Database.

The law has been criticized as having no mechanism for enforcement through the Public Records Division. If a public entity refuses or ignores an order to comply with a citizen's request, only the courts or the Attorney General might provide relief. Court costs will be reimbursed only if the aggrieved citizen wins their court case, and the chances of the Attorney General reviewing such cases are low. The long list of exemptions from the law can also limit the public’s access. 

This differs considerably from the Open Meeting Law, administered through the Attorney General’s Open Government Division. Enforcement actions include fines of up to $1,000 for intentional offenses, compulsory training for offenders, and nullification of actions taken during meetings  [G.L. c. 30A, §23(c)].

As the ARPS example shows, a public entity that describes itself as open and transparent will likely respond to a disclosure order. For any entity,  the publicizing of such a refusal would be a public relations nightmare. The communication options open to aggrieved citizens who meet with such defiance are many and would cause considerable embarrassment for the public agent foolish enough to flout the law.

Though the list of exemptions to the Public Records Law can be daunting, the ARPS Title IX case shows that a public entity’s claim to a statutory exemption does not always hold up under the scrutiny of the appeal process. Requesters who have good reason to believe their claim to access is valid should be persistent. 

The appeals process can also be used successfully when a records request is ignored or when the Public Records Division closes the case with no information having been dispersed to the requester. 

In my own experience,  an appeal usually results in a quick response to the original request. If the records released are unsatisfactory, the requester can appeal again within 90 days.

Often, any email response to a requester of public records will trigger a closure of the case by the state–even if no information was released. This is a quirk in the system that confused me at first. After discussing the issue with an attorney at the Public Records Division, I was advised to open an appeal. Sometimes it takes multiple appeals to secure the desired information, so persistence is key. 

Making Government Accountable

The Public Records Law of today is more streamlined for requesters thanks to reforms signed into law in 2016, which took effect on January 1, 2017. The reforms included:

1. Requiring public entities to create one or more Records Access Officers (RAO) to reduce confusion regarding with whom to file a request;

2. Timelines for public entities to fulfill requests;

3. Limits on fees public entities can charge requesters for producing paper records;

4. Making electronic records, when available, the preferred format for fulfilling records requests;

5. For citizens who take their cases to court and win, the ability of the court to assess punitive damages and attorney’s fees.

RAOs help the state keep track of public records requests through a log noting the details of each request. The creation of an RAO position does not mean that other employees in possession of public records cannot also release them to the public–though it would be good form to relay this release of information to the RAO so that the request may be added to the logbook. Once the requester obtains the public record, they are free to share it in any way they wish.

Despite its limitations, the Public Records Law supports open government and the public’s right to stay apprised of how their elected and appointed officials are carrying out their public duties. We all should be familiar with the law, and use it to its full potential.