Access to public records enables journalists to fulfill the press' role as government watchdog, but an effort quietly undertaken by the state's attorney general would close an entire class of those records to the public.A provision has been added to the state House's proposed budget that would create a broad new category of exceptions to public records law. The change was added without legislative or public discussion, and the bill will be taken up by the House tomorrow without debate unless legislators speak up.
Attorney General Thomas F. Reilly requested the new measure that would permit both state and local agencies to shield from public view any documents that might be involved in civil or criminal litigation.
At 578 pages, the proposed state budget is a hefty document. Reilly's change — which has nothing to do with the state budget — was slipped into the back of the bill, a technique often used to avoid debate.
Why the secrecy?
The attorney general's office apparently is still smarting over its loss in a civil case involving its client, the state Department of Environmental Protection, and General Electric. GE was cited for polluting the Housatonic River in Pittsfield, and the company requested from the DEP copies of pertinent state public records.
Reilly attempted to block GE from obtaining the documents, saying they were exempt from the public records law under attorney-client privilege.
The Supreme Judicial Court disagreed, and ruled that the attorney general's office had to turn over the records to GE.
Every state has an open records or freedom of information law that guarantees public access to government documents. The presumption is that all records are available for public inspection unless the Legislature makes an exception and exempts something.
The state's public record laws are administered by Secretary of State William F. Galvin, who says Reilly never consulted with him about the proposed change.
The budget bill rider would amend the state law regarding public records by adding the following exemption:
"An inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency, including, but not limited to, attorney work product and attorney-client privileged material; provided, that no record within this exemption shall lose its exempt status by reason of being shared with any other government official in connection with the development of a policy or litigation position."
Galvin said the amendment would create a cloak of secrecy that would have serious consequences.
"Let's suppose a letter from a subcontractor of the Big Dig comes in and it says someone is considering making a legal claim and wants to negotiate. This amendment means all documents pertaining to that portion of the Big Dig would suddenly be off limits to the public, and they would stay off limits," Galvin said. "If there was corruption, we would never know."
William Plante, executive director of the Massachusetts Newspaper Publishers Association, said Reilly's move is heavy-handed.
"We . . . consider this to be an unconscionable action by the attorney general to further limit the public's right to know information germane to its appreciation of public affairs," Plante said.
Some efforts will be made by legislators Monday to amend Reilly's restrictions, but the attorney general doesn't plan to cooperate.
"It cuts to the core of our attorneys trying to do their jobs for the state," Reilly said. "We're just looking for a level playing field for the state. We need protection or we can't do our jobs."
Reilly contends his amendment goes no further in limiting public information than federal officials already have. Galvin, Plante and others disagree.
Reilly wasn't budging from his position Friday. When asked if there was room for any movement, perhaps making the language more specific, the attorney general said, "I don't think so. Why not give it a chance to see if it works? It can always be re-examined."
Meanwhile, however, how much information would be kept from the public, and about what?
"If there was corruption, we would never know."
And, of course, that is the desired end.
Given Riley's longtime fealty to the Bulger Crime Family do you find this suprising?