Legislative Commission Whiffs On Public Records Report

After holding on to their public records law exemption in a landmark 2016 reform law aimed at making government more transparent, lawmakers assigned to come up with ways to open up the Legislature have now blown past two deadlines and are entering 2019 without consensus recommendations.

In late 2017, as a statutory deadline approached for a commission tasked with studying the public availability of legislative records and information, the group had yet to meet, and lawmakers gave their colleagues on the panel another year to complete their work.

The extra year, however, did not lead to the delivery of recommendations. The group of six representatives and six senators charged with examining legislative transparency and whether to apply public records law standards to the state Legislature is entering the 2019-2020 session, and near-term rules debates, with no report.

In the absence of an agreement with the House, the committee's Senate members — Chairman Walter Timilty of Milton and Sens. Cynthia Creem of Newton, Paul Feeney of Foxborough, Donald Humason of Westfield, Joan Lovely of Salem and Mark Montigny of New Bedford -- filed a set of recommendations on their own with the Senate clerk's office on Dec. 31.

"Despite best efforts, the Commission was unable to come to an agreement on joint recommendations prior to the deadline," the senators wrote, adding that their recommendations "find a balance between transparency and a deliberative policy making process."

The senators also gave voice to the idea of keeping the commission around. They said the recommendations could be "helpful for continued discussions" if the commission is "revived and continued." They suggested convening a similar commission every five years "to further transparency in state government."

Rep. Jennifer Benson of Lunenburg chaired the commission on the House side, with Reps. William Galvin of Canton, Paul Donato of Medford, Michael Moran of Boston, Mathew Muratore of Plymouth and James Murphy of Weymouth serving as members.

"I was really disappointed we didn't come to consensus," Benson told the News Service Tuesday. "My staff and I and the House members, as well as all the members of the commission, really took this seriously, did a lot of work and research around this issue and tried to understand every facet of not only the concept of public records, but exactly how we can make this more robust and accessible and transparent to the public and ways specifically to do that, and unfortuantely we just did not agree on ways to do that."

The House side of the panel did not file recommendations. According to a House official, the House and Senate clerks took different stances over whether the commission could file a report past its deadline.

A records law overhaul Gov. Charlie Baker signed in June 2016 featured new methods to make government more transparent and responsive to public records requests, but left in place the exemption for the Legislature, the Judiciary and governor's office from the records law that applies to most municipal and state agencies.

Instead, the law created the commission, charging it with studying the accessibility of information about the legislative process — including the scheduling of legislative sessions and committee hearings and the publication of committee records — and "the constitutionality and practicality of subjecting the general court, the executive office of the governor, and the judicial branch to the public records law."

The commission was initially assigned the Dec. 30, 2017 deadline. In November 2017, lawmakers then amended a spending bill to push back the commission's reporting deadline to Dec. 1, 2018.

The group met for the first time in February 2018. According to the report, the commission held five public hearings in locations both inside and away from the State House.

The senators did not make recommendations around extending the public records law to cover the Legislature, governor and Judiciary, but included a copy of testimony from New England Law professor Lawrence Friedman, which they said "was found to be credible and his conclusions to be persuasive, particularly because they are consistent with the law of other jurisdictions."

Friedman wrote that portions of the state Declaration of Rights and state Constitution provide a basis for exempting the Legislature from certain public records requests, and that a statute subjecting the executive and judicial branches to the records law could raise separation of powers concerns "to the extent public records requests could be seen as interfering with the functioning of the executive and judicial departments."

The bulk of the Senate recommendations focused on legislative committees and their hearings. They also suggested "further study be made into improving transparency with regards to open records throughout all levels of government in the Commonwealth."

Processes and requirements for committees are spelled out in a joint rules package that the House and Senate typically adopt at the start of each two-year legislative session. Committees also have their own rules.

After launching the new session on Jan. 2, House and Senate members are preparing for biennial debates over joint rules and House and Senate rules for 2019-2020, which could occur this month.

The joint rules from last session specify that all committee meetings "shall be open to the public, unless a majority shall vote otherwise," that hearings and executive sessions be scheduled "to the extent feasible" not to conflict with meetings of other committees or formal legislative sessions, and that hearings be limited to a maximum of 50 bills unless "all of the bills being considered are of the same subject matter."

The senators recommend further limiting hearings to "a reasonable restriction of four hours in length," requiring public notice of a hearing 72 hours in advance, and making committees' electronic poll or executive session votes available on the Legislature's public website.

They also call for committees to make available, upon request, "a brief and easily understandable summary" of bills they are considering and written hearing testimony.

Benson said she expects talks around transparency on Beacon Hill to continue.

"There's never an end to this conversation, whether it's the commission or not," she said. "We constantly have to strive to be more accessible and to make information readily available so that people can really see what we're doing, how we're doing it and why we're doing it."

The lack of agreement among the commission echoes the path of a separate panel created under the 2016 law, this one tasked with exploring the topic of police department records.

The police records group noted in its December 2017 report that it "could not reach consensus on proposed legislation," and highlighted "areas of concern" in current statute that could merit further examination.