Co-written with Maya Shaffer

For the first time in more than a year, the Massachusetts attorney general’s office has been prompted to take action against government officials who have violated the state’s public records law.

That’s good news, but it’s also the latest reminder that Massachusetts state officials treat transparency as a joke.

On June 30, the secretary of state’s office referred two records cases to the attorney general’s office. One deals with three district attorney’s offices—Plymouth County, Worcester County, and the Cape and Islands—that have refused to comply with Boston Globe reporter Todd Wallack’s request for data on criminal cases. The second case involves the Massachusetts Bay Transportation Authority’s refusal to provide a consultant’s report to Boston Herald reporter Matt Stout.

Every year, the secretary of state’s office, overseen by William Galvin, rules on hundreds of appeals from people who have been denied access to public records. Galvin’s office can order government agencies to comply with records requests but can’t actually enforce the orders. For enforcement, Galvin must refer violations to the attorney general or local district attorney, either of whom can sue agencies and file criminal charges against public officials. During the tenure of former AG Martha Coakley, Galvin’s office stopped referring orders entirely for several years due to disagreements about how to interpret the records law. Last year, after Maura Healey replaced Coakley, Galvin’s office referred just one order, this one related to a request the Bay State Examiner sent to the Fall River Police Department. Galvin’s office did not refer any additional orders until the two this June.

These referrals raise two important questions: On what basis does Galvin’s office decide whether to refer orders to the AGO, and will Maura Healey enforce the law now?

When Galvin testified before the legislature last year, he said: “[Maura Healey] and I … have had very constructive discussions relating to referrals, and I think we do have a protocol going forward to refer matters in the current situation.” However, Galvin’s office recently told us, in response to a records request, that it does not have any written protocols on when to refer appeals, so it’s anyone’s guess what they worked out.

Whatever they settled on, the office’s reasons for referring cases are either disturbingly narrow or completely arbitrary—because the two recently referred cases certainly aren’t the only violations of the public records law during the past year. We have asked Galvin’s office to refer a number of our appeals to the AGO, but with the exception of the Fall River appeal, we’ve had no luck. A few examples:

  • We have been trying to get records related to the destruction of evidence by police from the Berkshire district attorney’s office since last December. At first, the DA’s office falsely claimed that some of the records we asked for did not exist. Later, it told us we would need to agree to pay it more than $500 before it would provide us with a fee estimate for the records, despite being required by law to do so at no charge. Galvin’s office ordered the DA’s office to provide an estimate “without delay,” but it has not done so nearly three months later. Both Galvin’s office and the AGO have refused our repeated requests to have the order enforced, letting the DA’s office escape accountability.
  • Like the Herald, we’ve had our own issues getting records from the MBTA. In one instance, we got an order for the MBTA to turn over the records of payments to a private law firm that defended the agency in a public records lawsuit. The MBTA claimed the records were protected by attorney-client privilege, but Galvin’s office sided with us. The MBTA did not respond to the order, and Galvin’s office has thus far been unwilling to notify the AGO. In another case, the MBTA unlawfully destroyed a video after we requested it, but Galvin’s office refused to notify the AGO because the records no longer exist—even though the law specifically states that “destroy[ing] any public record” is a crime.

Why are the Globe and Herald requests to DA’s offices and the MBTA worthy of being referred, but not ours? We’re not sure, but at this point it doesn’t look like Galvin has any interest in working with the AGO on a regular basis. An early draft of the public records bill passed this year would have required Galvin’s office to turn over orders to the AGO when public officials don’t comply. However, a member of Galvin’s staff testified to the committee responsible for the final bill that leaving the office with “discretion … is preferred to allow [it] the necessary flexibility when seeking enforcement of orders.” Lawmakers later scrapped the proposed requirement.

The other piece of the puzzle is Healey: Her office has now had the recent referrals for two months and has no results to show for it. While the AGO will eventually have to make a decision, there’s no guarantee it will side with Galvin’s office—and even if it does, it’s unclear what, if anything, the AGO will do to enforce the law.

Galvin has said that his office stopped referring cases to the AGO because “they went nowhere.” Indeed, according to a 2008 report in CommonWealth magazine, it has been fairly uncommon for the AGO to side with Galvin’s office in the past. So the outcome of these two referrals will likely influence his willingness to work with the AGO in the future. And for those of us who are routinely forced to wait for records in order to publish stories, the fact that the process has taken months already is discouraging.

Shortly after Healey took office, she claimed she would make enforcing the records law a priority, but so far she has little to show for her promise. We’re more than a year and a half into her first term, and the public still has no clear method of getting assistance from the AGO when Galvin’s office isn’t enough.

If Galvin and Healey have truly had “constructive discussions” about public records enforcement, then they should release whatever policy they have come up with to make it clear how they plan to hold public officials accountable. The very process that was created to allow the public to keep government agencies transparent is in dire need of some transparency itself.

This article was produced in partnership between the Boston Institute for Nonprofit Journalism, DigBoston, and the Bay State Examiner.