Open State Government? Not So Fast

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By Matt Murphy

The lead House lawmaker in charge of reviewing ways to make state government and the Legislature more transparent said Wednesday that something as simple as posting committee testimony online could prove challenging given the technology available to the Legislature.

A coalition of open government advocates recommended to a special commission of House and Senate lawmakers that the Legislature take steps to improve the public’s access to decision-making on Beacon Hill. Those steps include posting online lists of people who testify before committees on legislation and any written testimony submitted to committees.

“This isn’t radical. In a way, we’re playing catch-up to some other states,” said Gavi Wolfe, of the ACLU of Massachusetts.

State Representative Jennifer Benson (D-Lunenburg), who is co-chairing a special commission on public records access, told the panel, however, that even a change such as that might no be so simple.

“The logistic of it may take quite a bit of time to implement and some of that is out of this commission’s control, in terms of web site management,” Benson said, explaining that “committees do not have their own web pages that we can add things to.”

House and Senate committee do have their own web pages that include a list of the members on the committees, bills referred to that committee, and hearing dates for those bills. Benson, however, told the News Service that Legislative Information Services controls all content on those web pages, including a representative’s biography, and any changes must be processed centrally through LIS.

Benson also told advocates assigning additional tasks to staff that she said are already stretched thin might be overly burdensome.

“We have very few staffers, so that extra level of training and effort, it’s trying,” she said.

The Special Legislative Commission Regarding Public Records met for the final time Wednesday to hear testimony on ways to improve the transparency of state government. The ACLU, Common Cause, MASSPIRG, the Massachusetts Newspaper Publishers Association, the Pioneer Institute, and the New England First Amendment Coalition all testified.

“Now we have to actually sit down and comb through all of this testimony,” Benson said after the hearing, indicating she hoped to spend the fall writing a final report with recommendations to the Legislature that will most likely not include draft legislation.

The special commission, which was created under a 2016 public records reform law, took a long time to get organized and missed its initial deadline of December 1, 2017 to produce a report. The Legislature pushed back that timeframe by a year.

“We have a deadline of December and we plan to meet it. I do not plan to ask for any further delays on this,” Benson said.

‘A Black Box’

The ACLU, Common Cause, MASSPIRG and the Newspaper Publishers Association testified together in support of a package of reforms that would end the exemption for the Legislature and the governor’s office from the state’s public records law.

Wolfe said legislative committees should also think about making votes within the committee more easy to track, and providing summaries of bills and changes made at the committee level. “The process, aside from that momentary open door of the hearing, it’s a black box type of process,” Wolfe said.

Massachusetts Newspaper Publishers Association executive director Bob Ambrogi said Massachusetts is one of only two states in the country where the governor claims a blanket exemption from public records laws, along with Michigan where he said candidates for governor this cycle have vowed to open their offices.

In addition to ending the exemption for the governor, Ambrogi recommended statutory changes that would also make administrative and financial records of the judiciary and certain legislative records, including financial documents, available to the public.

Some members of the commission appeared open to changes in the way the Legislature conducts its business. State Senator Joan Lovely, a Salem Democrat and vice-chairman of the Senate Ways and Means Committee, said she voluntarily complies with public records requests to her office as often as possible.

“I think we can come up with something that really does work,” Lovely said.

One suggestion, however, that seemed to be a non-starter was the suggestion that committees consider limiting the duration of hearings to four hours in order to cut down on hearings that can sometimes last 10 hours or more and cover hundreds of bills.

State Senator Walter Timilty (D-Milton), who co-chairs the commission with Benson, said lawmakers have to be sensitive to not appear to be stifling debate by limiting how long a hearing can last. “It’s a very delicate task for a chairperson of a committee to navigate that charge,” Timilty said.

Benson said it can also be hard to predict, at times, which bills will capture the imagination of the public. “To put this as a rule or in a law is, to me, really unmanageable,” she said.

Mary Connaughton, of the conservative-leaning Pioneer Institute, told the commission that despite transparency being necessary for an efficient government, the state’s laws remain “flawed.” While the courts have upheld challenges to the Legislature’s exemption from the public records law, the Pioneer Institute has suggested it might not pass a constitutional review.

“The legislative exemption undermines the rights reserved for the people in the state constitution and makes it impossible for citizens to uphold their end of the bargain by being engaged in the democratic process,” Connaughton said.

Connaughton also said that Governor Charlie Baker should immediately sign an executive order waiving any legal claim his office might assert to an exemption from public records laws.

“We believe Governor Baker is in a unique position to exercise leadership on this issue,” Connaughton said.