PIONEER INSTITUTE

 

PUBLIC POLICY RESEARCH

 

April 3, 2018

Representative Jennifer Benson, Co?Chair
Senator Walter Timilty, Co~Chair

Public Records Commission

State House 24 Beacon Street

Boston, Massachusetts 02133

Dear Representative Benson and Senator Timilty,

Pursuant to Sections 20(a) and 20(f)(i) of Ch. 121 of the Acts of 2016 (?An Act to Improve Public
Records?), Pioneer Institute (?Pioneer?) respectfully submits this letter to assist in your deliberations
?examin(ing) the accessibility of information concerning the legislative process of the general court
and the expansion of the de?nition of public records.?

As you may know, Pioneer has long promoted improved government transparency in the
Commonwealth. An area where Massachusetts ranks towards the bottom nationally in transparency
is the application of public records laws to the governor?s of?ce and the state legislature.1 As you
contemplate further reform to transparency laws, we wish to make you aware of key legal arguments
to support eliminating the legislative exception to public records laws. We also believe the
governor?s of?ce exception should be eliminated.

History of Government Transparency in Massachusetts

The Commonwealth of Massachusetts (the ?Commonwealth?) has provided for public access to
governmental records since 1851 (See Ch. 161 of the Acts of 1851). Before enactment of that
statute, public records were not subject to mandatory disclosure because they were generally
regarded as government property and access was subject to the discretion of governmental
of?cials (see A. Cella, Administrative Law and Practice, 39. Mass. Prac. ?ll6l (1986)).
Although an improvement in favor of transparency, the 1851 statute was unfortunately limited
in scope and only mandated the disclosure of records and documents that government agencies
or of?cials were required by law to make or keep.

However, in 1973, in the midst of the Watergate scandal and a wave of government
transparency demands that swept the nation, the statute was amended to signi?cantly broaden the
de?nition of what constituted a public record and establish a process for handling requests for
the examination and production of public records. An open meeting statute followed in 1975,
which established openness of government meetings as the general rule. See A. Cella,
Administrative Law and Practice, 39 Mass. Prac ?l4ll (1986). The current iteration of these
laws is codi?ed at G.L. c. 4, ?7(26) and G.L. c. 66, ?10 (the ?Public Records Law?) and G.L. c.
30A, ??18?25 (the ?Open Meeting Law?) (and collectively, the ?Transparency Laws?).

 

1 Notwithstanding the Commonwealth's long history of and claimed commitment to government transparency. its
transparency laws are generally considered among the weakest in the nation. See Reporters' Committee for
Freedom of the Press, Open Government Guide. Access to Public Records and Meetings in Massachusetts (6th ed.
2011). p. 1. In fact, the State Integrity Investigation, a 50-state grade?based survey of public records and open
meeting laws, gave the Commonwealth an overall grade of C- with an for public access to information and a 0+ for
legislative accountability. See Center for Public Integrity. Public Radio international and Global Integrity, State
Integrity investigation. March 2012.

 

185 Devonshire Street, Suite 1101, Boston, MA 02110 i T: 617.723.2277 

Purpose of the Transparency Laws

The purpose of the transparency laws is to promote more effective, accountable and responsive
government. See Suffolk Constr. Co. v. Div. of Capital/13561 Mgt., 449 Mass. 444, 452?54 (2007)
(stating that purpose of Public Records Law ?is to give the public broad access to governmental
records . . which is . . an essential ingredient of public con?dence in government?). See Day
v. BRG 161 S. Huntington, LLC. 2013 WL 8149731 at *6 (Mass. Super. May 17, 2013) (Giles,
J.) (stating that the purpose of broadly de?ning ?public body? in the Open Meeting Law is ?to
promote transparency in conducting matters that concern the public?).

The governing agencies charged with enforcing transparency laws claim to embrace and support
that objective. See Secretary of the Commonwealth, A Guide to Massachusetts Public Records
Law, p. i (stating that ?the founding fathers of our nation strove to develop an open government
formed on the principles of democracy and public participation. An informed citizen is better
equipped to participate in that process?); Attorney General, Open Meeting Law Guide, p. 1
(Aug. 1,2013) (stating that ?[t]he democratic process depends on the public having knowledge
about the considerations underlying governmental action. . . 

Legislature?s Exception

Notwithstanding the Commonwealth?s long history and claimed commitment to governmental
transparency, our transparency laws are generally considered among the weakest in the nation.
See Reporters Committee for Freedom of the Press, Open Government Guide, Access to Public
Records and Meetings in Massachusetts (6th ed. 2011), p, 1. In fact, the State Integrity
Investigation, a 50-state grade-based survey of public records and open meeting laws, gave the
Commonwealth an overall grade of - with an for public access to information and a for
legislative accountability. See Center for Public Integrity, Public Radio International and Global
Integrity; State Integrity Investigation, Mar. 2012. A principal reason for the Commonwealth?s
poor reputation for transparency and public access is that the General Court, the bicameral
legislative branch of state government, is excluded from application of the transparency laws.
See G.L. c. 66, ?18; G.L. 0. 30A, ?18 (excluding the General Court and its committees and
recess commissions from de?nition of ?public body?) (the ?Legislative Exceptions?).

Although the legislative exceptions are generally valid and enforceable when properly invoked,
the sweeping manner in which they are utilized today is not in the Commonwealth?s best
interest and cuts against the rights of the people set forth in the state Constitution.

The Public Records Law governs public access to government records and the government?s
obligation to create, maintain and disclose such records. G. L. c. 66, Requested
documents are presumed to be public records subject to disclosure and the burden is on the
applicable custodian to demonstrate that a particular document is exempt from disclosure. See
G. L. c. 66, Classes of exempt documents are described in the de?nition of ?public
record.?2 Some enumerated government entities are not required to comply with the Public

 

2 Excluded from the de?nition of "public records" are. among other things: documents related to internal personnel
rules and practices of the government unit. to the extent that proper performance of government function requires
withholding; (ii) documents relating to a named individual where disclosure would constitute an unwarranted invasion
of personal privacy; inter? and intra?agency memoranda or letters relating to policy positions being developed by
the agency; and (iv) investigatory materials necessarily compiled out of public view by law enforcement or
investigatory officials the disclosure of which would probably prejudice the investigation in a manner not in the public
interest. See G. L. c. 4, 

Records Law. The Public Records Law expressly states that it ?shall not apply to the records of
the general court . . G. L. c. 66, ?1
8.3

The Supreme Judicial Court (SJC) has twice af?rmed the legislative exception to the Public
Records Law. See Westinghouse Broad. Co., Inc. v. Sergeant?At?Arms of Gen. Court of Mass,
375 Mass. 179, 184 (1978); Lambert v. Executive Director of Judicial Nominating Council, 425
Mass. 406, 409 (1997) (citing Westinghouse in dicta when analyzing Whether certain executive
branch records are subject to Public Records Law). The court in Westinghouse analyzed the
statutory language on its face and found that the General Court was exempt from the Public
Records Law and that legislative documents are not subject to public disclosure.

in Westinghouse, a government agency?s records supervisor denied the plaintiffs request to
inspect the General Court?s telephone bills based on the determination that the legislative
exception in G. L. c. 66, ?18 shielded the bills from disclosure. See Westinghouse, 375 Mass. at
181. After determining that, pursuant to G. L. c. 4, the Legislature?s documents are not
?public records? subject to disclosure, the court held that G. L. c. 66, ?18 ?specifically exempts
the records of the General Court from the provisions of the public records statute.? Id. at 184-85.
It is irrelevant whether the Legislature is under some other obligation to maintain a particular
record; a record of the Legislature is not subject to disclosure because the Legislature is exempt
from the Public Records Law based upon the ?plain language of section 18.? 1d. at 185.

There is no negative treatment of Westinghouse reported in subsequent decisions and the

SJ did not raise any constitutional considerations in the decision. Nor did the court suggest in
dicta that the Legislature overstepped its authority by excluding itself from the requirements of
G. L. c. 66, ?18. Thus, based on Westinghouse, the legislative exception to the Public Records
Law is valid and enforceable. Westinghouse af?rmed the application of the Public Records Law
as then in effect but did not prohibit lawful amendments or other challenges to the Public
Records Law.

Though the SJ has not considered the legality of the legislative exception from open meeting
laws, it has rejected efforts to subject the General Court to requirements similar to those
established under the transparency laws via initiative petition based on the General Court?s
?constitutional to order their own internal procedures.? See Paisner v. Attorney
Gen, 390 Mass. 593,601 (1983).

In Paisner, the plaintiffs prepared an initiative petition pursuant to Article 48 of the Amendments
to the Massachusetts Constitution relating to the General Court?s operational procedures and
sought the Attorney General?s certi?cation. 1d. at 594. Some of the proposed requirements in
the initiative petition were similar to the Open Meeting Law?s requirements and included: 
?nal reporting of matters by committees; (ii) recording of committee votes in certain
circumstances; notice of committee sessions; and (iv) public hearings on every bill. Id. at
596. The Attorney General?s of?ce determined that the initiative petition did not relate to a
proposed ?law? as required and; therefore, was not permissible. Id. at 595. The plaintiffs

 

3 Similarly. Congress is not subject to the Federal Freedom of information Act because it is excluded from the
definition of "agency" codified in the law. See 5 U.S.C. ?552(f). Federal courts have enforced this exclusion."
See e.g. United We Stand America, Inc. I.R.S., 359 F.3d 595, 597 (DC. Cir. 2004).

subsequently sought declaratory and injunctive relief to cause the Attorney General to certify the
initiative petition. 1d. at 594.

The SJC held that, even though the General Court enacted laws governing its internal
procedures, it was ?clear beyond dispute? that the plaintiff?s initiative petition concerned a
rule regarding ?the internal proceedings of the two Houses of the Legislature? instead of a
law ?govern[ing] conduct external to the legislative body,? and thus was not appropriate for
the initiative process. 1d. at 596, 599-602. The SJC recited both state and federal case law to
support the rule that:

Legislative rule?making authority is a continuous power absolute and beyond the
challenge of any other It cannot be emphasized too strongly that this power
over procedures rests, not in the ?General Court,? but in the separate Houses of the
Legislature. Thus each branch of each successive Legislature may proceed to make
rules without seeking concurrence or approval of the other branch, or of the executive,
and without being bound by action taken by an earlier Where internal
proceedings are concerned, future legislative sessions cannot be bound by an action of
the General Court. This discretion to determine the method of procedure cannot under
the Constitution be abrogated by action taken by an earlier Legislature. In sum, the
rules of future sessions of the House or the Senate cannot under one Constitution be
controlled by vote of the General Court or by vote of the people, or even by vote of the
respective legislative branches. Id. at 600, 602-03.

Thus, the holding in Pat'sner suggests that if a challenge to the legislative exception to the Open
Meeting Law were directly before the SJ based on similar arguments, the court would uphold
it based on the General Court?s right to govern its internal procedures. The holding does not,
however, shut the door on subjecting the General Court to the requirements of the Open Meeting
Law through other means such as constitutional challenges.

The Commonwealth?s Constitution Calls for Legislative Transparency

Notwithstanding case law suggesting that the legislative exceptions are valid and enforceable,
there are legitimate and compelling state constitutional grounds suggesting that the exceptions
undermine rights reserved to the people under the state Constitution. The Commonwealth is a
social compact government formed to assist the people in the pursuit of their natural rights. The
Preamble to the Constitution sets forth the guiding principles of the Commonwealth?s
government and the general rights of the people over it:

The body politic is formed by a voluntary association of individuals: it is a
social compact, by which the whole people covenants with each citizen, and
each citizen with the whole people, that all shall be governed by certain laws
for the common good. It is the duty of the people, therefore, in framing a
constitution of government, to provide for an equitable mode of making laws,
as well as for an impartial interpretation, and a faithful execution of them; that
every man may, at all times, ?nd his security in them.

Preamble of the Massachusetts Constitution (emphasis added).

As its text illustrates, the Preamble expressly limits the General Court?s authority and requires

that the means and ends of the legislative process be reasonable and just.

Accordingly, the court is likely to consider a challenge to the legislative exceptions premised on
any imbalance existing between the General Court?s limited constitutional authority and the
Declaration of Rights, which arguably vests the people of Massachusetts with an equitable
interest in a transparent legislative process.

The Constitution provides the General Court with the exclusive legislative authority within the
Commonwealth. Exclusive authority is not, however, absolute authority. The constitution limits
the General Court?s powers by, among other things:

prohibiting passage of laws, directions and instructions that are ?repugnant or
contrary to this Constitution;?4

(ii) requiring public accountability of the legislature ?at all times?5; and

giving the people of Massachusetts rights to require of their legislators an
?exact and constant observance? of fundamental constitutional principles6 and 
give instructions to the legislators.7

Analysis of these constitutional limitations on legislative authority supports the proposition
that the legislative exceptions as currently applied extend the power of the General Court
beyond the limits of its constitutional authority and undermines rights reserved by the people.

The Constitution requires that ?all manner? of legislative acts must conform to the
Constitution and none should be ?repugnant or contrary? thereto. ?All manner? of legislative
acts logically must include the exercise of the Legislature?s authority af?rmed in Paisner to
order its own internal affairs and procedures. Similarly, the Preamble to the Constitution
calls for an ?equitable mode of making laws,? meaning that the deliberative process should
be just as equitable as the end result. Regardless of the scope of the Legislature?s jurisdiction
to govern its own affairs, the court has the authority to determine whether the Legislature is
?claiming privileges not belonging to it.? Cof?n. v. Coffin, 4 Mass. 1,33 (1808).

The Constitution also requires that the General Court be ?at all times accountable to? the

 

4 Part II. c. 1. 1. art. 4 of the Massachusetts Constitution states: ?And further, full power and authority are
hereby given and granted to the said general court. from time to time. to make. ordain. and establish. all manner
of wholesome and reasonable orders, laws. statutes. and ordinances. directions and instructions. either with
penalties or without; so as the same be not repugnant or contrary to this constitution. as they shall judge to be for
the good and weifare of this commonwealth. and for the government and ordering thereof. and of the subjects of the
same. and for the necessary support and defence of the government (emphasis added).

5 Art. 5 of the Massachusetts Declaration of Rights states: ?All power residing originally in the people. and being
derived from them. the several magistrates and officers of government. vested with authority. whether
legislative. executive. orjudicial. are their substitutes and agents. and are at all times accountable to them."

5 Art. 18 of the Massachusetts Declaration of Rights states: frequent recurrence to the fundamental

principles of the constitution. and a constant adherence to those of piety.justice. moderation. temperance.
industry. and frugality. are absolutely necessary to preservethe advantages of liberty. and to maintain a

free government. The people ought. consequently. to have a particular attention to all those principles. in

the choice of their officers and representatives: and they have a right to require of their lawgivers and
magistrates, an exact and constant observance of them. in the formation and execution of the laws necessary for
the good administration of the commonweaith." (emphasis added)

7?The people have a right. in an orderly and peaceable manner. to assemble to consult upon the common
good; give instructions to their representatives, and to request of the legislative body. by the way of

addresses. petitions. or remonstrances. redress of the wrongs done them. and of the grievances they

suffer." Art. 19 of the Massachusetts Declaration of Rights (emphasis added).

people. While the courts have not analyzed the words ?at all times,? the plain meaning is that
legislators remain constantly accountable for their actions to the people of the Commonwealth.
Accountability cannot be a reality if the Legislature exercises its authority behind closed doors
with its books and records shielded from public oversight. Accountability only in the end result
or only in hand-picked moments of candor is not accountability ?at all times.? This constant
accountability cannot involve ?accusation or prosecution, action or complaint? because of the
constitutionally granted legislative privilege discussed below, but the information derived from
this accountability can be the basis for the ele-ctorate?s decision whether to support incumbent
politicians. Particularly in light of the purpose of the transparency laws, ?at all times? involves
comprehensive legislative transparency to encourage public participation and trust.

One of the items to which the Legislature (along with all other members of the government)
must be held accountable for ?at all times? is the ?exact and constant observance? of
fundamental constitutional principles in the formation of law. While there is no definitive court
opinion establishing whether this article is a direct right that is judicially enforceable by
individuals or an item of instruction to guide citizens in how they should select their
representatives, the plain meaning of the word ?formation? includes not just the end result of a
bill signed by the governor, but the deliberative process used to shape and form draft proposals
into law. This is consistent with the language in the Preamble that the ?mode? of making laws,
far broader than the laws themselves, must be equitable. Whether members of the Legislature
are exactly and constantly observing constitutional principles can only be determined by the
people when they have access to the process. Without the ability to scrutinize the process, this
constitutional provision is ofno real consequence. That cannot be the case, however, because
this provision says that it is ?absolutely necessary.? Regardless ofwhether this article is
enforceable in the courts, the public cannot put the instruction to practice if there is only limited
and highly edited access to the legislative process.

Finally, Massachusetts residents have a constitutional right to instruct their legislators. This
constitutional article has been given extensive judicial treatment, particularly in relation to the
right to assemble.8 While the courts have not provided guidance on the meaning of the right to
?give instructions to their representatives,? the right has been codi?relation to proposing new legislative action. Regardless of the arguments made in academic
debates about this right in the absence of a court opinion, it is at least logical to conclude that
this right of instruction is meaningless if the people do not have access to information on issues
before the Legislature upon which any instruction can be based.

For more than a century, there has been the expectation that people would have a full discussion
regarding politicians and political actions. This assumes a meaningful amount of information
upon which to base such a discussion. 

Legislative Privilege Is at a Carte Blanche
Those favoring the legislative exceptions frequently rely on the legislative privilege set forth in
Article 21 of the Massachusetts Declaration of Rights, which states that ?[T]he freedom of

 

3 Speaking on the right to assemble. the Supreme Judicial Court stated that:

The extended and almost unlimited rights of suffrage, secured to the people of this commonwealth by the
constitution and laws, assume and are founded on the right of voters. to have the fullest and treest
discussion and consultation upon the merits and quali?cations of candidates, for their information and
the means of exercising a sound and enlightened judgment in regard to public men and political
measures. Com. v. Porter, 67 Mass. 476, 478 (1854).

deliberation, speech and debate, in either house of the legislature, is so essential to the rights of
the people, that it cannot be the foundation of any accusation or prosecution, action or
complaint, in any other court or place whatsoever.?

This language appears to support the assertion that the General Court to the legislative
exceptions outweigh any constitutional rights reserved to the people regarding access to the
legislative process. As discussed below, however, it actually supports the opposite principle
because: the underlying purpose of the privilege is to support the rights of the people and
thus should not be exercised in a manner that undermines those rights; (ii) the privilege is held
by each individual legislator and not by either or both bodies of the General Court as a whole;
the privilege extends only to legal causes of action, not public accountability for legislative
acts (which accountability is required elsewhere in the Constitution); and (iv) a broad
construction of the privilege assumes that the public has access to the deliberative process and
protects legislators from legal action initiated by the public based on this publicly available
information.

The leading case concerning the legislative privilege is Co?in v. Co?in, 4 Mass. 1 (1808). In that
case, a legislator made a defamatory statement about an individual supporting a proposed
legislative resolution. Id. at 23. The statement was made by a member of the House, while in
session. Id. at 24. There was no contradictory evidence presented to rebut the assertion that the
statement was defamatory so the sole issue before the court was whether the legislative privilege
shielded the declarant from liability. Id. at 25.

After determining that it possessed the requisite authority to review legislative action,9 including
those actions the General Court contends is within its own exclusive jurisdiction, the SJ analyzed
the language of Art. 21 and found, first, that the privilege is held by each individual legislator, not the
legislative body as a whole, ?even against the declared will of the house. For he does not hold this
privilege at the pleasure of the house, but derives it from the will of the people, expressed in the
constitution, which is paramount to the will of either or both branches of the legislature.? Id. at 27.

The court next found that the purpose of the privilege is not for ?protecting the members against
prosecutions for their own bene?t, but to support the rights of the people, by enabling their
representatives to execute the functions of their of?ce without fear of prosecutions, civil or
criminal.? Id. Accordingly, the privilege should be construed liberally for everything said and
done as a representative while exercising the functions of that of?ce regardless of whether done
according to the rules of the House. Id. The House must be in session, but the statement can be
made outside the walls of the chamber if it is made pursuant to the legislative function. Id. at
27-28. The court recognized that, on occasion, ?a private bene?t must submit to the public
good,? but that a ?more extensive construction of the privileges of the members secured by this
article, [the court] cannot give. . .But so careful were the people in providing that the privileges,

 

9 The issue turned on separation of powers considerations and counsel argued fervently about whether the court
had jurisdiction to determine the matter. Id. at 32?36; see also idat 6- 23 (reporting of arguments by counset for
plaintiff and defendant). The Court determined that the judiciary may review legislative action. including those
actions the General Court claims is within its own exclusive jurisdiction, when the question presented concerns
whether the General Court has the constitutional authority to decide such matters. Id. at 32-33; see also
Bumbam v. Morrissey, 80 Mass. 226, 238 (1859) is the province and duty of the judicial department to
determine, in cases regularly brought before them. whether the powers of any branch of the government, and
even those of the legislature in the enactment of laws, have been exercised in conformity with the Constitution;
and ifthey have not been, to treat their acts as null and void").

which they, for their own benefit, had secured to their representatives, Should not unreasonably
prejudice the rights of private citizens.? 1d. at 28-29 (emphasis added).

Despite broadly construing the legislative privilege, the court determined that the privilege is
not a carte blanche for legislators to act without refrain or accountability, but rather that it hinged
on whether the legislator was ?executing the duties of his office? when he made the defamatory
statement. 1d. at 28. The court ultimately found the legislator?s privilege inapplicable because
the words in issue ?were not spoken by him on a subject before the house, either in an address
to the chair, or by way of deliberation or advice with another member.? 1d. at 29, 33. The court
opined that, to extend the privilege to any statement made by a representative within the walls
of the chamber not in relation to an of?cial duty, ?would be to extend the privilege farther than
was intended by the people, or than is consistent with sound policy, and would render the
representatives? chamber a sanctuary for calumny an effect which never has been, and 
con?dently trust, never will be, endured by any House of Representatives of Massachusetts.? Id.
at 31.

The Constitution and the people who delegated authority to the Legislature, and not the
Legislature itself, have the ?nal word on the extent of the rights and privileges of the
Legislature:

In this state, we have a written constitution, formed by the people, in which they have
de?ned, not only the powers, but the privileges of the house, either by express words, or
by necessary implication. A struggle for privileges [by the Legislature], in this state
would be a contest against the people, to wrest from them what they have not chosen to
grant. And it may be added that the grant of privileges is a restraint on the rights of
private citizens, which cannot be further restrained but by some constitutional law.?
Co?in, 4 Mass. at 34; see also Holden v. James, 11 Mass. 396, 404 (1814) (stating that,
in the Commonwealth, ?the sovereign and absolute power resides in the people; and the
Legislature can only exercise what is delegated to them according to the constitution?)

Practical Considerations
Two practical issues that are frequently raised in opposition to expanding legislative
transparency also merit consideration.

Protecting Sensitive Information

Legislators regularly deal with the personal information of constituents. Sensitive information
is obtained by representatives when communicating with constituents, drafting proposed
legislation and considering the impact of legislation on their districts. In an interview conducted
in 2012, Northampton Representative Peter Kocot, who served as co-chair of the Joint
Committee on State Administration and Regulatory Oversight, expressed concern about
protecting constituents? sensitive personal information:

Legislators every day deal with constituents who offer con?dential
information, whether that information is a health record, a legal record, things
they don?t want made available to the public. They are coming to [their
iegislator] based on a con?dential relationship. We want to make sure that any
expansion of public records laws protects constituents and does not place them
in jeopardy.

See Becker, Deborah, Mass. Receives Grade in Political Corruption Study, Mar. 19,
2012 (available at 

Maintaining constituent privacy and con?dentiality is a legitimate concern and an important
government function. However, when balancing this concern with the right of access to the
General Court?s records, a narrower legislative exception should suf?ce. The Public Records
Law already contains exemptions for personal documents where the disclosure might ?constitute
an unwarranted invasion of personal privacy.? This concern is better handled by applying
existing or new, narrowly tailored exemptions from the transparency laws rather than the blanket
Legislative Exceptions.

Promoting Government E?iciency

9!

As the sayings go, ?time is money? and ?too many cooks spoil the cake. The court in Paisner
held that the Legislature has authority over certain internal procedural matters, including notice
of committee sessions and public hearings, so an argument that increased transparency inhibits
the legislative process is somewhat sympathetic. To this point, House Speaker Robert DeLeo
said that ?[t]he discussion [in private] becomes a lot more open and in that fashion moves the
process along a whole lot faster.? Bierman, Noah, Legislators' Vital Work Veiled from Public ?5
Eye, The Boston Globe, July 8, 2011. Similarly, former Senate President Therese Murray says
taking hundreds of amendments ?out of conference and put[ting them] in the public realm, then
the conferees are never going to get to ?nishing up the budget within the time frame we need
them to finish.? 10?.

To a certain degree, this is a reasonable argument. A policy based on ef?ciency promotes the
people?s interest in a well- functioning legislative body. Certainly, open meetings with the
opportunity for endless public debate would arguably result in an unwieldy direct democracy.
Further, applying the transparency laws to every encounter between legislators in State House
hallways and stanwells to negotiate and discuss pending legislation would be counter-productive.

Consideration is warranted, however, as to whether opening up the Legislature?s various meetings
to public observation via application of the transparency laws, including any currently existing
exemptions and any new, narrowly tailored exemptions necessitated by unique legislative needs,
would unduly inhibit the legislative process. Based on an analysis by the New England Center
for Investigative Reporting, ample opportunity apparently exists to open a broader portion of the
legislative process to the public than is presently permitted. For example, between January 2011
and March 2014, the House met in formal session for the equivalent of only 69 eight?hour days
and the Senate met for 43 eight?hour days. On more than half of the days that legislators met
during this period, they were in session for less than half an hour. See Shenoy, Rupa, Mass.
Legislature Among States That Pass The Fewest Bills, Apr. 20, 2014, New England Center for
Investigative Reporting.

The study also shows that the General Court already has dif?culty working ef?ciently. Although
Massachusetts is one of only a small number of states to block public access to legislative
meetings and records, the Commonwealth is ranked 47th for the percentage of laws enacted out
of all proposed hills (which for the period of'January 201 1 through March 2014 totaled 5.4
percent, or just 945 bills enacted out of the 17,596 proposed). 1d. Although Speaker DeLeo and
other legislators argue that ?[t]he success of a legislature is not measured numerically like a

scorecard but on the basis of groundbreaking, substantive pieces of lawmaking that save cities
and towns money, preserve and create jobs, and improve peoples? lives,? the analysis indicates
that only 21 percent of the bills enacted during the relevant period had a broad impact across the
Commonwealth. 1d. The rest had limited application, such as 466 laws applying to only one
community, 158 laws creating a sickuleave bank for a single state worker and 78 that granted a
liquor license. Id.

Opening up the Legislature to public scrutiny might enhance the legislative process because
increased accountability may encourage legislators to diligently pursue their constituents?

interests and give the public an informed basis on which to provide suggestions about the process
and ?give instructions to their representatives.? At a minimum, removing the legislative
exceptions can hardly be said to inhibit the legislative process, given the General Court?s
performance record.

Governor?s Exception

Pioneer also strongly believes that the Governor?s Of?ce should be subject to public records laws.
We have made a formal request to Governor Baker to abandon the notion that the Governor?s Of?ce
is exempt from public law despite the shelter governors have utilized from the decision in the 1997
ruling in Lambert v. Judicial Nominating Council. We reiterate that the Governor?s Of?ce in
Massachusetts is one of only a small handful nationwide that claims full blanket exemption from
state public records laws.

We have attached Pioneer?s initial letter to Governor Baker on the subject (We received no reply).
We have also attached Pioneer?s follow?up request (again, no reply). These letters describe Pioneer?s
measured and reasonable request of the Governor?s Of?ce regarding public records.

Thank you for considering our legal and policy arguments on legislative transparency. We would
welcome the opportunity to appear before the Commission.

Sincerely,


Connaughton John Sivolella
Director of Government Transparency Senior Fellow in Law Policy

10