Wednesday, August 08, 2007

Governor Patrick Defying Public Records Law

Massachusetts Governor Deval Patrick has requested advisors to assemble a set of "completed studies" of gambling for his perusal, as he ponders what to do with the Wampanoag proposal to put a casino in Middleborough. (Not Middleboro, as the Boston Herald thinks to spell it.)

The Boston Globe got wind of this and took the obvious next step: requesting copies of those documents under the Massachusetts Public Records Law. The request certainly falls within the public interest: I would be interested in knowing what information is contained in them in order to understand the reason why the State should, or should not, allow slot machines in the proposed casino.

Governor Patrick's lawyers have decided to refuse to provide the documents, citing an exemption clause for executive privilege. (Oh, no, Governor Patrick sounding like President Bush!) This clause is described in the "Guide to the Massachusetts Public Records Law."

The Supervisor of Public Records, in the Public Records Division off the Office of the Secretary of the Commonwealth, oversees compliance with the Law. The Boston Globe has appealed to the Supervisor the Governor's refusal to provide the documents.

While it is possible that a few pages of documents might have been written by advisors to Governor Patrick in order to help him understand the gambling studies and their impact on policy-making, the gambling studies themselves are most likely public records and hence not exempt. The executive privilege exemption in the Guide reads:
Exemption (d) provides a limited executive privilege for policy development. It applies to:

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.
Factual studies are not exempt from the public records law, but memoranda or letters relating to them may be. The "completed studies" on gambling sure sound like the former, not the latter. I think the Governor is going to lose this one, but who knows how long it will take for the Supervisor to order the records released.

In an odd coincidence, the Boston Globe also reported on how the executive director of the state's pension, Michael Traviglini, will propose for a boost in his salary -- and possibly also extremely lucrative performance bonuses. Traviglini doesn't want to release his salary proposal in advance of a meeting with the Pensions Reserve Investment Management Board. "It is just a proposal, and there is nothing in the public meeting law that proposals are public," he said. I think he meant the Massachusetts Open Meeting Law.

Yes, his point might be valid, but the copy of the proposal is public under the Public Records Law at the moment it is in the hands of a state official, which he is. A better argument of his should have been that the salary proposal represented a personnel document, some of which can be exempt from the Public Records Law under exemption (c) as described in the Guide:
Generally, personnel information which is useful in making employment decisions regarding an employee is sufficiently personal to be exempt pursuant to the first clause. Such information may include employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information.
But note the other point made in the Guide:
Historically, this office has broadly interpreted the personnel exemption, however, based on more recent judicial decisions, a more narrow interpretation is necessary. The nature of some materials and the context in which they arise take them beyond what the Legislature contemplated when exempting personnel information.
The salaries of state employees are public information, which is quite obvious when you know that the Boston Herald requested them and published them in an online database. But is a salary proposal a public document? I suspect yes, but I'm not sure; it would, nonetheless, be a stronger case for Traviglini to argue for an exemption via this route.

A day later, the Glober reported that State Treasurer Timothy Cahill killed the salary proposal.

These two cases show how often public officials, even a lawyer Governor, often mis-understand the State's Open Meeting Law and Public Records Law.

UPDATE (8/9/07 9:00 am): The Boston Globe ran an editorial this morning furthering their argument that Governor Patrick should release the gambling studies under the Public Records Law:
The administration is splitting hairs by arguing that the completed studies are exempt from public disclosure as part of the governor's "deliberative process." Transparency will be essential if casino gambling is to succeed in the Commonwealth.

For more information on the state's Open Meeting Law, click on the label below.

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