Breaking the Massachusetts Public Records Law shouldn’t be de facto legal

The Boston Globe on March 4 continued a long-running tradition by publishing an article complaining about Massachusetts Public Records Law. This law gives the public access to a wide range of government documents—at least in theory. In practice, officials constantly violate it with impunity, somtimes because they’re hiding things but often because they simply don’t want to dedicate resources to providing information to the public.

One part of the Globe story caught my attention. But first, a bit of background: If someone is facing the all-too-common problem of a local government or state agency refusing to comply with a public records request, their primary recourse is to file an administrative appeal with the Public Records Division of the Massachusetts Secretary of the Commonwealth’s Office. The division is headed by the supervisor of public records, who is appointed by the secretary.

This process can be helpful when officials choose to be cooperative—“choose” being the operative word here. Ultimately, the supervisor of public records does not have the power to enforce her decisions in court. If a government agency refuses to comply, the supervisor can refer the matter to the Attorney General’s Office, which has the authority to file lawsuits.

The supervisor has sometimes made referrals to the Attorney General’s Office, but the system has proven dysfunctional. Attorneys general have come and gone, and the AGO has consistently shown little interest in public records enforcement. The AGO has brought very few cases to court and has often disagreed with the supervisor’s interpretation of the law even though the Public Records Division is staffed by attorneys who spend all day working on legal issues related to the Public Records Law.

The AGO also has an interest in keeping its own records secret, and fighting for legal precedents that expand access to public records could open it up to more scrutiny. And it’s particularly unsurprising that the AGO has rarely taken action against state agencies. After all, the AGO is responsible for defending those same agencies in court—sometimes it even defends them against public records lawsuits brought by members of the public.

That brings me to this detail in the Globe’s recent story:

Secretary of State William Galvin said his office stopped referring cases to the attorney general nearly three years ago. It could take months for the attorney general’s office to reach a decision — and sometimes ended up disagreeing with his own office’s findings, he said. (From 2017 to 2023, it referred 35 cases to the attorney general, according to Galvin’s office. Since Galvin spoke to the Globe in November, the Secretary of State’s office referred a case to the Attorney General in January.)

“In general, government agencies do not like the public records law, and they don’t have a predisposition to be terribly cooperative,” Galvin said. “There are exceptions to that, but many do not. So it’s been very much of a struggle to make sure that it’s enforced evenly.”

Galvin declined to make Manza Arthur, the supervisor of records, available for an interview.

Attorney General Andrea Campbell did not respond to an interview request. According to public records released by her office, the attorney general has prosecuted three public records cases since 2016, including one against the Mystic Valley Regional Charter School filed in 2023.

(By contrast, Campbell’s office has filed nearly 50 lawsuits opposing Trump administration actions since last year, she said at a breakfast honoring Dr. Martin Luther King Jr. in January.)

So for a three-year period, the public did not have anyone in state government bringing new legal cases against local governments and state agencies that violated the Public Records Law. For years, it was—for all intents and purposes—legal for officials to violate the law. And even now, this dysfunctional system remains in place, leaving the Public Records Law as more of a set of suggestions.

With no one in state government fighting for the public’s right to know, the only option a person has when they are denied access to records is to file their own lawsuit. This is an incredibly time-consuming process, and it’s unreasonable to expect people to go through it.

I recently won a public records lawsuit against Northwestern District Attorney David Sullivan’s office, which tried to unlawfully hide the names of police officers who had been accused of misconduct from the public. I was forced to sue the district attorney’s office because it refused to provide unredacted records even after the supervisor of records sided with me three times. When a Suffolk County Superior Court judge ruled in my favor on December 30, my records request’s fourth anniversary was less than two weeks away. And more than two months after the ruling, I’m still waiting for the district attorney’s office to produce the unredacted records. That makes 50 months so far that David Sullivan has been able to keep this newsworthy information from the public.

Before I could go to court, I had to track down legal representation—and that proved to be difficult and time consuming in itself. There are few lawyers who do this kind of work because there’s relatively little money in it. Unless you are a large organization that can pay out of pocket for legal representation, you will need to find someone willing to represent you pro bono. Your attorney will have to wait until the end of the case—which can take years—to get paid. The Public Records Law generally requires judges to order government agencies that lose lawsuits to pay the plaintiff’s legal fees. But lawyers can make more money and get paid on a more consistent basis by doing other types of work. (Notably, a lawyer who spent years representing the Telegram & Gazette in a successful public records lawsuit against the city of Worcester had to file an appeal because the lower-court judge inexplicably cut his fees by more than half.)

I’m lucky enough to be represented by Mason Kortz of the pro bono Harvard Law School Cyberlaw Clinic. But pro bono law practices only have so much capacity for this type of work. (In fact, I was initially represented pro bono by a law firm, but we parted ways after it eventually became clear it did not have the resources available to effectively represent me at the time.)

And even though I had to invest a lot of my own time and energy in this lawsuit—including tracking down legal representation, closely coordinating with my lawyer, reviewing court pleadings, and attending court—I will never be compensated for any of it. The law does not allow people who have been denied access to records to seek compensation for the work they were forced to do to get those records or for the harm caused to the public by hiding information for years. All plaintiffs are legally entitled to is the records themselves.

Meanwhile, government officials have effectively unlimited resources to defend themselves—since they are using taxpayer money. In my lawsuit, the Northwestern District Attorney’s Office is represented by two attorneys from the Boston-based private law firm Butters Brazilian. The district attorney’s office agreed to pay $350 an hour each for two attorneys and $75 an hour for the work of clerks and paralegals, according to a July 2023 agreement obtained by making a public records request. Butters Brazilian has charged taxpayers $18,620.84 for its work on the lawsuit as of December, according to records released by the district attorney’s office.

While there’s probably no such thing as a perfect Public Records Law, one obvious fix would be to give the supervisor of public records the right to take agencies to court when they violate her orders. The attorney general should not serve as a gatekeeper who prevents these cases from going to court. If the commonwealth is going to have a transparency watchdog, she should actually have the ability to carry out her mandate.

We’re seeing the same gatekeeper dynamic at play with State Auditor Diana DiZoglio’s quest to audit the state legislature. Even after 72 percent of voters approved a 2024 ballot question giving DiZoglio’s office the power to audit the legislature, legislative leaders are refusing to comply. And DiZoglio has been blocked from going to court because Attorney General Andrea Campbell refuses to represent the Auditor’s Office or allow her to hire her own outside counsel.

While members of the public should have the right to file their own public records lawsuits, they should not be expected to do so. The state already has an office that’s supposed to hold law-breaking officials accountable—it should be empowered to actually carry out this mission. Officials should not have the expectation that if they violate the Public Records Law, they will get away with it. But for now, that’s the reality in Massachusetts.

You can read my advice about making public records requests here:

Celebrate Sunshine Week by making your first records request

Public records laws are necessary for holding government accountable

The Mass DumpAndrew Quemere

Check out this podcast to hear by advice about filing administrative appeals:

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