The Patrick Administration's Guide to the Public Records Law

This post is co-authored with Pioneer’s partner, Muckrock, which has extensive experience with public records requests at the federal, state, and municipal level.

Hot on the heels of “Sunshine Week,” when MassPIRG celebrated the Patrick Administration’s commitment to transparency, we thought we’d collect some best practices in transparency we’ve learned over the years from the Administration.

Massachusetts’s Public Records Law was created to allow citizens to access important government documents and provide another avenue of government oversight. After all, the documents are paid for by our tax dollars and in some cases, such requests are the only avenue to provide public accountability. But over the years, Commonwealth bureaucracy has developed increasingly “creative” interpretations of transparency, saving the public the trouble of having to study the issues by ensuring that government data leaks out only sporadically and as uselessly as possible.

While we’re impressed by the state’s dedication to ensuring the public doesn’t have to bother with double-checking their work, we thought that compiling “best practices” we’ve observed over the years might help others emulate Massachusetts’s success.

Without further ado, the Administration Guide to (Avoiding) the Public Records Law:

1. Ignorance is Bliss. The most common initial response to requests in Massachusetts? Silence. Train employees to pretend that annoying slip of paper never came in the mail, or that the e-mail inbox was full that day, or that someone must be breaking in at night and stealing all the incoming public records requests. The less plausible, the better, because until one of your staff messes up and acknowledges the request, the Public Records Division will refuse to consider any appeals of the request, no matter how long you delay.

2. We Hide, You Seek. While having a dedicated public records contact person is commonplace in many federal agencies and in many states, it’s much simpler to keep bouncing around requests between departments. The clerk says it’s the press relations job; the press relations flack kicks it to legal; legal kicks it to the secretary; the secretary promptly loses it. For bonus measure, make sure that the only contact information on the site is an arcane HTML form that doesn’t actually send the messages. Providing an e-mail address would only encourage constituent interaction.

3. Freedom of Information isn’t Free. And it shouldn’t be cheap. Yes, tax dollars paid for the originals documents, but now that they’re maintained by the department, your imagination is the only limit on how much you can charge. Several of Pioneer’s requests were greeted with estimates of $50,000+ to comply with. One agency claimed that the six-figure-salaried director of communications at the Connector would work, personally, on the request for two straight weeks. We think they could have gone farther, requesting a new building complex on the waterfront dedicated to fulfilling the request in a multi-year project.

4. It’s too easy being green. Still searching for ways to drive up costs? For the uncreative departments, a favorite (and almost universal) tactic is to insist documents are printed out and mailed. You can charge per page that way, add extra delay, and add on the hourly rate of the poor intern — or better yet, seasoned executive — who has to walk back and forth between the computer and the printer.

5. I see nothing, I see nothing. If you can’t find it, they can’t have it. So ensure that your internal record-keeping uses such an arcane, inscrutable system that once a working paper gets filed, it stays filed — forever. If it was referenced by a politician or even seen at one point by the requester herself, it doesn’t matter. You don’t have it now, and they can’t prove otherwise.

6. Creative Exemption Making 101. Claiming the request is outside the purview of the public records law is easy: Take a definition in the law and claim the document is outside that narrow definition. Our favorite was a state employment report that the Comptroller’s Office posts every two weeks. Their response: It’s “not a standard report and therefore not available.” Another agency, in denying a request, simply cited the public records act itself as the exemption, an act of such beautiful circular logic we couldn’t help but be impressed — and appeal.

7. Apples and Oranges. Sending irrelevant information is a great way to show good faith while not actually obeying either the letter or the spirit of the law. For a request filed almost a year ago, Economic Development responded by sending two unsigned copies of a draft contract from sometime in the 1990s, plus some pages from various bills mentioning the program in question and a few memos.

8. Data wants to be jailed. If you must send information, use burdensome formats. When the Human Resources Division finally produced a response to our request, they produced a spreadsheet internally then converted it into a PDF. We’ve seen an enhanced version of this tactic where agencies produce tons of data, which appears to have copied multiple times, then scanned into a PDF. This creates a lengthy document with poor resolution which cannot be searched electronically. Better yet, do all the above and then combine with No. 4 for extra uselessness.

9. Hide the Bacon. Claim the information requested is at another agency, thus steering the requester towards the bureaucratic mess that entails. The highpoint of this tactic had to be the Administration’s response to our request for details on preparation for federal health reform. Health and Human Services said it wasn’t them, as did the Connector. Turned out the planning was being done by an ‘interagency working group’ with no formal name or staff but involving both departments, thus virtually inaccessible to record requests when both agencies should have responded.

10. Appeals? We don’t need no stinking appeals. Count on the secretary of state to do nothing. Requestors under the public records law can turn to the secretary of state with their grievances. That office’s typical response is no response, as few appeals get ruled on and there is almost no repercussion for agencies that don’t comply with the process

We hope this simple, 10-step guide to public records reform is helpful to other states looking to follow the administration’s lead on transparency, and possibly even to help the (very) few compliant Massachusetts agencies understand that releasing data may be the law, but it doesn’t have to be the reality.

 

Crossposted at Pioneer Institute’s blog.