Transparency missing from government
MuckRock finds Public Records Law isn't working
July 06, 2011
For more on the Public Records Law, see CommonWealth's updated guide to public records.
last november i received an email from an attorney working at the Department of Transitional Assistance informing me that if I didn’t remove from my website information I had received from his office through a public records request, I could “be fined not more than $1,000 or imprisoned not more than 1 year, or both.”
I was surprised. Public records requests are about the dullest form of journalism, involving a mix of bureaucratic judo, boundless patience, and lots of stamps. I had created MuckRock.com, where the data were posted, to take as much of the tedium out of the process as possible and encourage more citizens to exercise their right to access public records. Rather than having to draft their own letter from scratch, look up the agency contact information, and constantly remind the government that the request was overdue, users could simply click a template, type in what they wanted, and let us handle the rest.
The data in this case were simply the amount of money the government had reimbursed stores throughout the state under the Supplemental Nutrition Assistance Program, commonly known as the food stamp program. There was no personal identifying information; it was just stores and dollar amounts.
But the state insisted that the data had been “erroneously released,” and that I was obliged to remove the material. After consulting with Rob Berstche, a nationally known media lawyer who offered us pro bono assistance, we decided to share the emails with our readers, leave the information up on the website, and wait to see what would happen. We were never contacted by the Department of Transitional Assistance again.
Looking back now, after having filed more than 500 public records requests on behalf of myself and others throughout Massachusetts and the rest of the country, I’m surprised that I received any response to my request. In my experience, most valid public records requests are simply shelved and ignored.
The opacity carries a very real cost. In the past few years alone, Massachusetts has paid a terrible price for a lack of transparency in the form of patronage, kickbacks, payoffs, and the implosion of one of the Commonwealth’s largest investments in a private company, Evergreen Solar. Despite occasional rumblings otherwise, the state of transparency here is about as grim as the long winter we endured.
I didn’t expect an easy road when I cofounded MuckRock. As a reporter, my requests typically met with mixed results. Occasionally, documents would trickle out, almost invariably late and arbitrarily redacted by agencies that rarely complied with, or even understood, the public records laws. Traditionally, the only recourse in these cases has been to sue, an expensive proposition.
We take a new approach: By making the process as transparent as possible, we highlight agencies that violated public records rules (including how many days, exactly, a given request was overdue). Instead of selectively cherry-picking the results, we also publish records in full, to allow people to see what reporters were seeing when they wrote their stories. Such a radical notion of accountability was appealing to a lot of groups, including the Pioneer Institute, which signed on as an early partner.
But government officials were not always as receptive. Of 94 requests MuckRock has helped users file at the state and local level in Massachusetts, only 36 have been fulfilled at the time of this writing.
Two requests, originally submitted March 9 to the Office of Medicaid for department cost estimates, have gone completely unanswered despite repeated follow-up voicemails requesting a response.
Another request, for a copy of the most recent contract between the Executive Office of Economic Development and private lender MassBusiness, was submitted on Jan. 15. I finally received an update on April 6 saying the request had been received and the department would “respond as soon as possible.” As of the end of May, I still hadn’t heard anything.
In Massachusetts, agencies are required by statute to respond to a public records request within 10 days, but in my experience that rarely happens. A request seeking information on state layoffs broken down by department took 99 days to fulfill from first submission to final response. At the federal level, such delays would at least mean copying and other fees would be waived, but state officials charged Pioneer $368, or $61.33 per page, for a six-page spreadsheet. To make matters worse, despite repeated requests for the responsive information to be provided digitally, the department mailed me a printed copy of the spreadsheet, making it needlessly difficult to analyze and sort.
The lack of responsiveness to public records requests is almost endemic in Massachusetts. On Sept. 28, 2010, freelance reporter Kate Chappell filed a request seeking information about why the Boston Redevelopment Authority gave a $200,000 loan to the failing Bay State Banner newspaper, a move that raised eyebrows nationally for its ethical implications. Despite repeated acknowledgements of the request, no information has yet been provided. More recently, in a masterstroke that Orwell would appreciate, the Boston Globe was forced to sue the Patrick administration over blacked-out documents detailing gag agreements with former state employees who received severance agreements. In other words, you can’t see who was paid with your tax dollars not to talk.
We asked the Massachusetts Technology Collaborative and then the Massachusetts Clean Energy Center—two agencies that invested millions of tax dollars and incentives in Evergreen—for resumes and other documents indicating staff experience with the solar energy industry or consultation with industry experts. The answer from the Clean Energy Center was terse and dumbfounding. “MassCEC does not possess the records you have requested.” None of the other seven requests I made regarding the state’s solar energy investment policy have received a substantive response yet.
The problems with public records compliance stretch the breadth of state government. Pioneer filed a request with the Department of Elementary and Secondary Education more than a year ago, only to be met with stonewalling and demands for document production costs that have almost tripled to $17,000 from the initial estimates.
And these are all requests to agencies that are subject to the Public Records Law. In Massachusetts, unlike many other states, the judiciary, the Legislature, and governor’s office are all exempt from public disclosure rules, as are personnel files, deliberative process materials, and materials covered under attorney-client privilege. This last exemption has led to the questionable practice of officials copying their lawyers on sensitive emails to avoid public scrutiny.
The state hasn’t had much success releasing its own data directly to the public. The Open Data Initiative was launched with great fanfare a year and a half ago as a way to promote transparency by allowing the public to view and analyze raw government data. Today, however, the initiative consists of a few outdated Excel files here and there coupled with a lot of links back to agency websites, but very little to entice the software developers, entrepreneurs, or journalists the site ostensibly caters to. The site’s blog has not been updated since May 2010. When I tried to sign up for the site’s mailing list, I received the following message: “Because this mailing list is private, you must be approved by a mailing list administrator before you can become a member of this mailing list.”
The information being sought by MuckRock isn’t part of a fishing expedition, nor is it likely to turn up any “smoking guns” that result in a string of public firings, reforms, or political grandstanding. It is, generally speaking, simply asking to see the details of how taxpayer money is spent, particularly when there is an indication that the money is being wasted with little oversight (in the case of Evergreen Solar) or of very broad public importance (in the case of health care reform).
It’s exactly the kind of necessary, wonky material that is receiving less scrutiny in the media as news organizations work to untangle their own revenue issues. But rather than embracing the idea of an eager volunteer pool of citizen auditors, overseers, and strategists, the state of Massachusetts seems determined to keep the doors of policy and power as closed as possible, despite the repeated costs incurred to both the state’s coffers and the electorate’s trust. Both are in perilously short supply these days.
Michael Morisy is the cofounder of MuckRock.com, a website dedicated to helping people request, track, and recover public data and documents. MuckRock and Pioneer Institute are partnering on a project on state government spending.