Mass AG shows just how useless public info laws are, but change is possible

The day before Thanksgiving, Massachusetts Attorney General Maura Healey’s office generated some holiday cheer in the open government community by filing a lawsuit against three district attorney’s offices that have refused to comply with public records requests from the Boston Globe for information about criminal cases.

But on Dec 2, just hours after Healey spoke before the Massachusetts Newspaper Publishers Association and promised to continue fighting for transparency, her office announced that it would not take any action against the Massachusetts Bay Transportation Authority, which has likewise been obstructing a request from the Boston Herald for about a year.

In December 2015, Herald reporter Matt Stout filed a request for a report on employee absenteeism that was prepared by the law firm Morgan, Brown & Joy. “Since the Baker administration essentially took over the T last year, they’ve obviously pointed to many problems that they want to fix. Among them has been this issue with absenteeism,” Stout says. “They’ve consistently pointed to that as an issue they’re trying to tackle—getting their leave policies under control, reigning in absenteeism, getting a handle on how [the Family Medical Leave Act] is used within the T, and they have this consultant’s report that not only recommends certain steps to take, but I think the assumption is [it] also identifies some of the issues and problems that go along with those.”

Morgan, Brown & Joy made 21 recommendations to the MBTA, but Stout wanted to know more: “Essentially, we know solutions but not really a full extent of the problem, and that’s one reason I’ve kind of gone after this report … [T]hese things are prepared for public or, in the T’s case, quasi-public agencies—and one that gets a billion dollars in taxpayer funding. And as often as you can, you want to kind of look behind the curtain, so to say, to see why decisions are being made as they’re being made, and the findings, and how these things are operating.”

Since Stout made his request, the MBTA has claimed the report is protected by attorney-client privilege. Stout made three appeals to the secretary of the Commonwealth’s office. Each time, the secretary’s office ruled against the MBTA. The secretary’s office even looked at the report as part of what’s called an in camera review (i.e., a private review) to help it reach its conclusion. It found that even if there is legal advice in the report, the MBTA can redact it and provide any factual information from the document. Despite the three orders stating that the MBTA failed to justify its attorney-client privilege argument, it stood firm in its refusal to release the report.

Finally, in June, at Stout’s request, the secretary’s office took the unusual step of referring its order to the AGO. The secretary’s office can issue orders to public agencies to produce records, but it can’t enforce the orders. It must refer them to the AGO, which has the power to file lawsuits against agencies and prosecute public officials. In the past, the attorney general’s office has rarely agreed with the secretary’s office on the public records law, and the disagreements have led to friction. In fact, the secretary’s office stopped referring orders altogether for five years, only resuming last year after Healey took office. The secretary’s office only referred one order to the AGO in 2015; this year, it has referred four, including Stout’s.

After receiving the referral, the AGO ordered the MBTA to either give Stout the records or provide an explanation as to how they are protected by attorney-client privilege. The MBTA quickly chose the latter, providing Stout with yet another denial letter.

Finally, the AGO announced in a Friday-night news dump that it was siding with the MBTA. According to a letter the AGO sent to Stout, “the entire Report represents a communication between counsel and client, it is our view that the Report is not a public record and there are no portions that may be segregated for disclosure.” But the AGO reached this conclusion on the MBTA’s say-so. The letter notes that the AGO didn’t actually review the report—probably because unlike the secretary’s office, it doesn’t have the ability to order in camera reviews. In any event, the AGO chose not to take the MBTA to court so that a judge could decide the merits of MBTA’s arguments.

This case raises a lot of issue regarding access to public records. One is whether government officials should really be entitled to broad attorney-client privilege protections. As MassLive reporter Gintautas Dumcius tweeted: “[T]he #MBTA is funded with public money. So maybe taxpayers and riders are the ‘client’ in this relationship.” The Supreme Judicial Court has already ruled that the common law gives government officials attorney-client privilege, so that’s not likely to change any time soon. However, since the MBTA isn’t required to hide behind attorney-client privilege, we can still wonder just what it’s keeping from us.

In any case, the Legislature actually could address the needlessly complicated, Kafkaesque system for challenging denials of records request. Clearly it shouldn’t have taken a year for Stout to get where he is today. It doesn’t make sense that the secretary’s office would choose to rule on the same issue numerous times before referring it to the AGO. It doesn’t make sense that the secretary’s office is permitted to perform in camera inspections, but the AGO isn’t. In fact, it makes no sense for the secretary’s office to handle appeals in the first place if only the AGO can enforce the rulings and may have a different interpretation of the law.

The system is a mess and could use streamlining. One solution would be to have the AGO handle appeals and remove the secretary’s office from the process entirely. But this would have drawbacks since, as the late Alan Cote, the former head of the Public Records Division pointed out, the AGO is also responsible for defending state agencies in court. As he put it: “You’re really asking the attorney general to call her client, who she just represented last week or last month, and say, ‘We’re going to take you to court and we’re going to sue you to give this record up.’ It really is a strange setup that we have. The way to solve it is to give [the secretary’s] office more power.” Indeed, removing the AGO from the equation and giving the secretary’s office the power to sue is another option.

A third way was suggested by Secretary of the Commonwealth William Galvin in 2001 (although he no longer seems to support it). According to a report published in the Globe that year, Galvin proposed legislation that would create an independent public records commission with the power to take lawbreaking agencies to court. “It would allow for tougher enforcement,” he said at the time. “It would be focused solely on the task of giving citizens better access to their government and reduce any inconsistencies that now exist.”

While we wait in vain for the perfect public records law, media organizations like the Herald can still file lawsuits themselves, although that option is a costly one. Currently, litigants in public records lawsuits cannot get their legal fees back even if they win. Next year, a new public records law will go into effect that allows successful litigants to recover fees, but only at the discretion of the judge hearing the case. Stout declined to comment on what he plans to do to pursue his request in the future.

Broken Records is produced in partnership with the Boston Institute for Nonprofit Journalism. Follow BINJ @BINJreports and @BrokenRecords_MA for our ongoing reporting on public information.