GOVERNMENT TRANSPARENCY REMAINS ELUSIVE FOR MASSACHUSETTS REPORTERS

BOSTON- Repeated clashes between journalists and the Massachusetts state government reveal that despite the passage of legislation last year attempting to reform the public records law, a culture of secrecy still leads agencies to deny information requests.

When reporter Jenifer McKim of the New England Center for Investigative Reporting requested records in 2014 from the Department of Children and Families for a story she was writing on children who had died of neglect while in the department’s care, she was expecting a fairly routine bureaucratic process. When she finally had the records, after six months of legal wrangling, payments, and postponements, that assumption stood corrected.

As McKim recalled it years later, there was an audible note of frustration in her voice.

“I ended up filing a public records request on my public records request to see all the emails about their efforts to pretty much to stall me,” she said.

Mckim’s experience is not uncommon in Massachusetts. The state’s public records law is notoriously opaque, filled with exemptions, loopholes and bureaucratic processes that can make efforts to acquire information difficult or impossible.

Uniquely among states, Massachusetts law provides that the executive, legislative and judicial branches of government are all exempt from public records requests. Agencies can hold back files if they believe their release will invade an individual’s privacy. This is the most commonly invoked reason for denying requests.

“There’s lots and lots of exemptions,” said Todd Wallack, an investigative reporter for the Boston Globe who has spent years writing about public records law Massachusetts.

“I’ve worked in Ohio and California and it’s much easier there to get police reports and mugshots, and 911 calls and all sorts of basic documents that can be really difficult to get in Massachusetts.”

Wallack first realized this while researching a story about police who had kept their jobs after being arrested for drunk driving.

“When I started asking for those basic reports,  police departments turned me down, arguing they had discretion to withhold those reports whenever they wanted.”

He discovered firsthand the chilling effect that this can have on reporting.

“That story took almost a whole year for what I thought initially was going to be a story that I did in a few weeks.”

Slow responses to requests for records can also frustrate those trying to access public data.

“Agencies would often argue they needed to spend hours and hours and hours reviewing basic documents that didn’t really need review,” said Wallack.

Agencies can charge exorbitant fees for this process, too. Earlier this year, Wallack requested a list of public records requests from the state police. The document would have consisted of the names of requesters, and what they were asking for. He received a bill for $20,000 instead.

“They argued that they needed to spend 20 minutes per entry, per line on the spreadsheet, analyzing it to determine whether they could release that.”

Mark K. Leahy, former chief of the Northborough Police Department and current executive director of the Massachusetts Chiefs of Police Association, defended these practices in an email. “Sometimes the requestor has no idea of the true magnitude of the request,” he wrote, “and the amount of time required to gather the material. It’s troubling when the requestor is ‘testing the waters’ to measure a response, as opposed to truly needing material for a genuine need, court case or article.”

But Wallack seemed more concerned with information barriers impeding genuine projects.

“The worst possibility is that lots of stories don’t get written,” said Wallack, “because it takes so long that there are stories we can’t get to.”

Leahy also supported the claiming of exemptions on certain information.

“Topics such as specific security plans, floor plans of certain facilities, how police patrols are deployed, the identity of sexual assault victims and child abuse victims should be kept from the public’s eye,” he wrote. “It’s a delicate balance, and I think the Massachusetts Public Records Guide is generally reasonable.”

McKim encountered arguments like these when she was reporting on child neglect, and she disagrees.

“They said it was confidential because it was about kids, and it would affect their siblings, and their families, etcetera. Our argument is that these are at-risk kids and how are we going to prevent their deaths if we don’t know what happened to the ones that died?”

Wallack believes that there are many reasons why the state government can be hesitant to release information.

“One is that there’s just not a  culture in Massachusetts  of understanding that government records should be public and easy to get,” said Wallack. “There are definitely people who believe in charging just on principle. There are also people who, I think, resent it when reporters or citizens ask for records. They feel like the records are the government’s property, and they feel like people are people are just wasting their time or being invasive.”

Wallack’s assessment is consistent with McKim’s story.

“When I filed the FOIA on my FOIA, I got emails where you could tell the government was doing their best to keep me from asking more question and giving me as little as possible,” said McKim. (The Massachusetts public records law is similar to the federal Freedom of Information Act, and the latter is sometimes used to mean the former in conversation.)

Stories like these have garnered Massachusetts a reputation for secrecy within the state government. In 2015, the Massachusetts State Police were given a Golden Padlock Award by the nonprofit organization Investigative Reporters and Editors, a dubious honor that recognizes “the most secretive publicly-funded agency or person in the United States.”

Such notoriety has led to a push for change. In 2016, Governor Charlie Baker signed a bill into law designed to improve the state’s record laws in a number of ways, including making records requests affordable, shortening wait times and directing courts to award attorney’s fees when an agency’s attempt to deny information is found to be unlawful.

But the bill’s impact has been questionable. A legislative committee established by the bill that supposed to examine the exempt status of the legislative, executive and judicial branches has never met, despite a looming December 30 deadline to produce a report.

To transparency advocates like Pam Wilmot, executive director of Common Cause, a nonprofit government accountability advocacy group in Massachusetts, the bill was a step forward.

“It brought the laws from some of the worst in the country to around the middle,” said Wilmot. “It was a big improvement.”

Most significant to Wilmot was the ability to recover attorney fees.

“What we have now is the ability to go to courts to enforce your rights as a consumer of public records. We were one of three states in the country that no possibility of recovering court costs even if you sued for your records and won. That meant it was very difficult for people to spend that money out of pocket.”

Despite this, efforts to extract records are still being stymied. After nearly a year, Wallack has only recovered half of the records the state police tried to charge him $20,000 for. In February, Attorney General Maura Healey ruled that the governor’s office did not have to give a list of constituent calls to the office to the Boston Globe. And earlier this year, McKim found herself in another legal battle when a county jail tried to charge her more between $7,000 and $8,000 for a list of inmates who had died while incarcerated.

“Perhaps not all of it is done purposefully,” said McKim. “But it thwarts the ability to do good journalism.”

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