An expert panel of transparency advocates roundly criticized Massachusetts’ “outdated” 1973 public records law, which never anticipated the exploding role of digital technology in conducting government affairs, during a well-attended symposium at Suffolk University Law School’s Rappaport Center for Law and Public Service.

The event, “Access to Government Records in Massachusetts: Issues and Trends,” drew speakers from state and municipal agencies, public advocacy groups and the news media for an animated assessment of the state’s progress in maintaining electronic records and making them accessible to the public.

The verdict was grim. While everyone agreed that managing digital information was a complex, costly and evolving issue, experts from in and out of state said Massachusetts rated very poorly when compared to other states, and even some nations.

“Despite being a technology center, you rate among the worst states,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, a national monitoring group. “This state needs to change its culture about public access.”

The Massachusetts open records law was written long before the use of e-mail, spreadsheet formatting and digital search engines were contemplated. Journalists and public interest groups say it is too weak to compel the state to treat public access more seriously in an age when other states are proactively putting data on line.

The criticism comes as a poll released by the Rappaport Center and conducted by the Suffolk University Political Research Center found that 70 percent of Massachusetts citizens believe strongly that open government is critical to democracy, but 57 percent view the state as somewhat or very secretive.

Officials from a variety of state agencies said a lack of funding and personnel, inconsistencies in how departments handle electronic data, and frequent confusion over just what data is being sought accounted for delays and the high cost of obtaining public records.
“Our biggest challenge is the economy,” said Rebecca Murray, a staff attorney with the Public Records Division, which arbitrates cases in which documents have been denied. “We are trying to be a leader but we lack the funding for the resources we need.”

Judy Zeprun Kalman, deputy chief of staff in the Office of the Attorney General, said it is "difficult for an agency our size to comply" with the mandated 10-day response period.

"Forty years ago a public record probably meant a manila envelope in a file somewhere," she said. "Now there is an enormous trail of digital and e-mail records to go through."

James B. Lamke, executive director of the City Solicitors and Town Counsel Association, said municipal officials are caught between conflicting mandates. “Is every document and every email a public record? The government feels strongly obligated to protect the privacy rights of employees and the general public.”

But others said the problem in Massachusetts is more profound. Lawmakers and judges have created so many exemptions – including some that shield much of the Legislature and judiciary from the open records law itself – that state and municipal officials have little incentive to view requests in an accommodating light.

State Rep. Antonio Cabral, chairman of the Committee on Bonding, Capital Expenditures and State Assets and an openness advocate, said he is tired of the excuses. "We need to start with the premise that the public has a right to know what elected leaders are doing, and then decide where exceptions apply as we go,” he said.

Robert J. Freeman, executive director of the Committee on Open Government for the State of New York, seemed shocked by the state’s approach. “In New York we have a law that forces agencies to deem records public or private before they store them,” he said.
Maggie Mulvihill, a lawyer, veteran news reporter and associate director of the New England Center for Investigative Reporting at Boston University, said, “Journalists face a constant problem trying to discern how the records are kept and stored.”

“It’s embarrassing to be from one of the most progressive electronic states and constantly hearing, ‘We can’t get the data electronically,’ ” she said. “This data is a necessary tool in reporting on the government’s business.”

The "Right to Know" colloquium was sponsored by the Rappaport Center for Law and Public Service, the Massachusetts City Solicitors and Town Counsel Association, and the ACLU of Massachusetts. It was timed to coincide with International Right to Know Day.