Public records should be public

PUBLIC RECORDS should be public, but all too often that's not the case here in Massachusetts.

The Massachusetts Public Records Law - the state's counterpart to the federal Freedom of Information Act - looks tough on paper, but is actually weak in practice.

One of the law's biggest problems is its limited reach. The Legislature, for example, exempted itself from the public records law in 1897 and has not looked back. Judicial officials, citing court decisions, say their branch of government is exempt. And Governor Deval Patrick, who came into office promising an open administration, claims that case law exempts him from the Public Records Law, although his aides say he voluntarily complies with most requests.

As part of an investigation I did for CommonWealth magazine, I examined hundreds of public records appeals on file at the secretary of state's office and made 44 public records requests of my own. The documents on file indicate that fierce struggles are being waged every day between citizens seeking records and government officials seeking to withhold them.

The 44 public records requests I filed were simple and straightforward, yet only two officials responded in full compliance with the law. Six officials violated the law by not responding at all, while 21 responded only after the law's 10-day response deadline.

Virtually all the officials who responded failed to comply with requirements that they notify requesters of their right to appeal a decision, or that they cite an exemption for redacting or refusing to produce documents.

The Public Records Law encourages officials to waive fees for fulfilling document requests. Some did in response to my requests, but most didn't. The Massachusetts Port Authority, for example, initially tried to charge $1,641 for 300 pages of executive director Thomas Kinton's appointment calendar, including $141 an hour for Kinton himself to spend 4.5 hours reviewing redactions made by his lawyer. Massport later reduced its charge after I challenged the initial price.

When citizens don't get the records they want or believe they are being charged too much, they can file an appeal with Alan Cote, the secretary of state's supervisor of public records. Cote can order the release of records, but he has no power to enforce his decisions. Enforcement is left to the attorney general, who has often disagreed with Cote's interpretation of the law, sometimes leading to contentious exchanges.

Of the 52 public records appeals Cote referred to former attorney general Thomas F. Reilly since January 2003, Reilly reversed Cote's rulings in 10 cases and failed to respond to 14 referrals. Cote has referred 10 cases to Martha Coakley since she took over as attorney general in January 2007, and she took on two of the cases Reilly left behind. Of these 12 cases, Coakley reversed Cote's rulings in three instances and has yet to respond to two referrals.

Cote's Orwellian handling of one case in 2005 has the potential to significantly undermine the Public Records Law. When citizen activist Shirley Kressel claimed that Boston Mayor Thomas Menino failed to respond to her public records request for documents involving the demolition of the Gaiety Theatre, Cote concluded, in Catch-22 fashion, that he could take no action because there was no response from the mayor for him to review. He says he based his decision on an earlier ruling by the attorney general.

The implication is enormous: An official can escape the reach of the Public Records Law by simply ignoring it.

Charles Davis, executive director of the National Freedom of Information Coalition at the University of Missouri, points to Florida as having the "gold standard" for state public records laws. Florida defines public records far more broadly than Massachusetts, and is launching an effort to make more of the state's records available on the Internet

Davis says states like Massachusetts need to make their operations more transparent. "Public officials need to put on their big-boy pants and act like adults and do the right thing by making documents easily available to the public they are supposed to serve," he says.

Colman M. Herman is a freelance writer living in Dorchester. This column is adapted from his article in Commonwealth magazine.