Governor Patrick's Administration Refuses to Release Names of 12 Member Study Group

According to the Lowell Sun, Massachusetts Governor Deval Patrick's administration has refused to release all the names of a 12 member study group formed to study the possibility of slot machines and casinos in Massachusetts. Cyndi Roy, the Administration's spokesperson, is quoted by the Lowell Sun as stating that the members of the study group will not be made public except for Economic Development Director Dan O'Connell, Health and Human Service Director Judy Anne Bigby, and Public Safety Commissioner Kevin Burke. That leaves 9 members who will apparently remain annonymous. Maybe the 9 unnamed members will wear bags over their heads or disguises at the public hearings that, according to the article, are expected to be held in the future.

The Governor's spokesperson Roy also is quoted as saying, "We are not naming the members because it is not our policy to name internal people working on policy for us." Huh? Ok, I think there is a little confusion here over the public's right to know. The public has a right to know who is serving in government positions, even in the Executive Branch. After all, we are paying their salaries. So, if the question is who is seving on this study group, then the Governor should be releasing that information, even if his staffers are telling him there is no law that compels him to release the information. In any event, he will have to release the information under the Public Records Law if he receives a public record request and there is a public record which contains the information.

I had such high hopes for Governor Patrick so this "acting in secret" business is so disappointing. What has happened to the man we all thought was going to change the way government was conducted in Massachusetts? What have they done with the Deval Patrick we elected? I am holding out hope that this latest story is just a miscommunication.

Massachusett Legislature Votes Against Open Government

I found this story on Bluemassgroup.com. Bluemassgroup.com has the following quote from the Somerville Journal:

POST COMMITTEE ROLL CALLS ON WEBSITE (H 3746) House 20-127, rejected a new rule requiring that committee votes cast by legislators on bills heard by their
committees be posted on the Legislature's website. Current rules require
committee votes to be kept in the offices of the committee and be available for
public inspection upon reasonable notice and during regular office hours.
Supporters of the new rule said this would simply give people quick and easy
access to the committee votes of their legislators. They noted that under
current rules, a person has to drive to Boston during regular business hours in
order to obtain this information. Opponents of the new rule said that the
current system has worked well for years and should not be changed. (A "Yes"
vote is for the new rule requiring that committee votes be posted on the
Legislature's website. A "No" vote is against the requirement).

It is really a sad day when the Massachusetts legislature votes against open government. According to the roll call vote, which is also posted on Bluemassgroup.com, Rep. Hynes was the only Democrat who voted for open government. All the Republican members voted for it. They are: Bradley H. Jones, Jr. , Mary S. Rogeness, George N. Peterson, Jr., John A. Lepper, Fred Barrows, Viriato Manuel deMacedo, Lewis G. Evangelidis, Paul K. Frost, Susan W. Gifford, and Robert S. Hargraves.

Open Meeting Reform Bill

A bill backed by the Massachusetts Newspaper Publishers Association has been filed by Rep. Stephen Kulik. The bill would allow courts to impose civil fines on governing bodies and on individual members of governing bodies if the court determines they have violated the Open Meeting Law. It also allows for recovery of attorney's fees from the governing bodies. You can read more about the bill on the MNPA website.

Rep. Kulik's bill is an important piece of legislation. The Open Meeting Law needs to be strengthened. Imposing fines and allowing attorney's fees against a governing body that has been found to violate the law is necessary.

In my personal opinion, however, fining individual members of the governing bodies would be a mistake. Many of the people who serve on local governing bodies do so with little or no compensation and in some communities it is becoming more difficult to encourage more people to run for local office. The individual civil fine provision of the proposed changes to the Open Meeting Law will act as a further deterrent for people to serve in local offices. For this reason, it could hurt democracy at the local level more than it would benefit it. It is overkill and unneccesary.

Rep. Kulik's bill would be vastly improved if, instead of allowing the court to fine individual members, it included a requirement that local officials receive training in the Open Meeting Law or pay a fine.

Governor Deval Patrick's Denial of Public Records Request

Unfortunately, I have not been able to find too much in the press about this story. The Metrowest Daily News, in an editorial on February 16th, reports that the Governor has denied a public records request from Barbara Anderson, head of the anti-tax Citizens for Limited Taxation. The public records request, which can be downloaded on the Citizens for Limited Taxation website, sought "copies of all reports submitted to the Governor relating to budget savings within their departments."

The response from the Michael J. Pineault, Deputy Chief Counsel for the Governor, was a denial of the request on two grounds. First, because the Governor maintains that under Lambert v. Executive Director of the Judicial Nominating Council, 425 Mass. 407 (1997), the Office of the Governor's records are not subject to disclosure under the public records law. As discussed in the one other newspaper article I could find on this story, this is a questionable interpretation of the Lambert case which concerned a request for "judicial questionnaires submitted to the Judicial Nominating Council."

Second, Mr. Pineault states, "we have reviewed your request and determined that it seeks memoranda relating to policy deliberations that are exempt from production under exemption (d) of the public records law." Exemption (d) exempts from disclosure "any inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this sub-clause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based." Seems like just from the wording of the clause that the Governors position on this ground is questionable too. Aren't the requested records "completed factual studies or reports on which the development of such policy positions has been or may be based?"

In any event, even if the Governor's grounds for not producing the requested records were unquestionable, the Governor could still have produced the records. Exemption (d) of the Public Records Law does not prohibit production of records. It only provides a basis for not producing a record if the custodian determines it is appropriate under the circumstances.

Although it is disappointing that Governor Patrick has decided not to produce the records requested under the Massachusetts Public Records Law based on questionable grounds, his counsel at least should have explained the decision better. Simply citing the law and, in effect, saying we are not producing the records because we do not have to is not sufficient. It smacks of arrogance and it undermines the Governor's persona as a man of the people.

The Citizens for Limited Taxation has filed an appeal with the Secretary of State's office.

If Only More Communities Were Like Belmar, NJ.

Blemar, N.J., is a community on the New Jersey shore. According to the borourgh's website, it has a year round population of about 6000 residents which swells to 40,000 during the summer. Also according to the borough's website, its elected officials get the importance of providing the citizens of Belmar with easy access to public information. Belmar has its own Project Open Government that is "designed to achieve three goals:

Ensure Citizen Access
Encourage Citizen Participation
Earn Citizen Confidence."

As part of the project, the Mayor and the Council are providing their email addresses and encouraging citizens to contact them. They also are digitizing their public records and putting them online so that, as the website states, "our residents and taxpayers will be able to view these records from the privacy of their own homes, without having to take time off from work or to feel uncomfortable asking to look at documents at Borough Hall."

There is no reason why more communities here in Massachusetts cannot follow Blemar's example. Shouldn't every public official want to ensure citizen access to information, encourage citizen participation and earn citizen confidence? More importantly, shouldn't we as citizens demand it?

Common Cause Massachusetts to Recognize Stars.

There are 41 municipalities that presently post all key governance records on their websites. The key governance records are: the governing body's agendas and minutes, the present fiscal year budget, the by-laws or ordinances, and, if applicable, the past year's town meeting warrant and town meeting results on their websites. During Sunshine Week, March 11-17, these cities and towns will be publicly recognized by Common Cause Massachusetts as examples of communities committed to open government. If your town or city is not already a "Star," then you can help make it one, and it too will be recognized by Common Cause Massachusetts.

Persuade your town or city officials to post all the key governance records online and notify us when they do so. Common Cause Massachusetts will gladly recognize them as well for their commitment to open government.