Massachusetts’ Open Meeting Law Does Not Apply to State Legislature

By Kimberly Rau, MassLandlords, Inc.

Massachusetts gets low marks in many areas of transparency. A 2015 article by the Center for Public Integrity gave it an overall D+. But one of the most egregious examples of lack of accountability surrounds the fact that the open meeting law does not include the state legislature.

Massachusetts General Court: We’ve got our eyes on you. It’s time for the Mass. Legislature to be subject to the open meeting law and public records act. [Image License: CC by SA 4.0 MassLandlords, Inc.]

What is the Open Meeting Law?

The open meeting law states that “all meetings of a public body shall be open to the public.” This does not include closed meetings or sessions, also called executive sessions. It requires public bodies to give at least 48 hours’ notice of a meeting, not including weekends or holidays. And it compels these groups to record and keep accurate minutes of those meetings.

The meeting minutes that are recorded are considered public record and are accessible through the state public records law, with certain exceptions.

How Does Massachusetts Compare to Other States Regarding the Legislature and Open Meeting Laws?

Most states include their legislature in their open meeting laws. However, Massachusetts is not among them. This 2011 article from the Reporters Committee for Freedom of the Press is somewhat outdated (California’s legislature is, at least now, subject to the open meeting law). However, the article shows that even 12 years ago, Massachusetts was in the minority when it comes to not including its legislature in the open meeting law.

Georgia and Oklahoma exempt their state legislatures from their open meeting laws. Delaware’s legislative caucuses are not subject to open meeting laws, but its legislative committees are. Minnesota does not include its legislature in its open meeting law, but has a separate law that covers it. And Oregon remains ambiguous. That makes Massachusetts one of very few states that does hold its legislature accountable under the open meeting law.

And how do these states do when it comes to integrity? We already covered Massachusetts’ lackluster record in this department. Georgia and Minnesota get a D- from the Center for Public Integrity; Delaware, Oklahoma and Oregon get an F. That’s not great company to be keeping.

Text Messages May Not Be Retained as Part of the Public Record

Along with being exempt from the public meeting law, the legislature (also called the “general court”) is exempt from the public records law. The open meeting law and public records law are essentially two sides of the same democratic coin. The open meeting law allows the public to attend meetings and see democracy in action. The public records law allows people to access public information. But even when a public official is not exempt from the open records law, that doesn’t mean getting information will be easy.

Earlier this year, the Boston Globe put in a public records request for text messages to and from Boston Mayor Michelle Wu for the dates leading up to her first state of the city address, which was held Jan. 25.

The newspaper requested all text messages between Jan. 20 and 27, but received none. The reason? According to Boston’s public records officer Shawn Williams, the mayor “does not conduct official City business via text message and does not retain text messages.” The Globe article included a photograph of Mayor Wu texting on her cell phone. It strains belief that all of her texts are personal and completely unrelated to official business at all times.

The state does not have clear guidelines for text messages. It has a municipal records retention schedule, which states that general administrative records must be kept for three years, and policy development-related correspondence should be retained for five. But “transitory messages,” which could include text messages, need only be retained “until administrative use ceases.”

Lawyers who spoke to the Globe for its story said that if the text messages in question related to city business, they should be considered part of the public record. The substance of the messages, in other words, not the medium with which they are conveyed, is what’s important.

But when the Globe requested all text messages from the Boston City Council for the same dates, it got exactly one text message back about food waste and pest control. This was between 13 city council members over the course of a week.

It’s pretty far-fetched to believe in today’s digital age, none of the city officials whose records were requested use their cell phones to communicate via text message. But if the city isn’t responding, what recourse does one have? MassLandlords is currently suing the City of Boston for records based around the establishment of its Rent Stabilization Advisory Committee. We asked for correspondence surrounding how the members of the committee were selected; so far, we have received nothing that actually answers the question.

What Does It Mean to Be in a Democracy?

Being in a democracy is more than having the opportunity to get out and vote (and given the high number of bills designed to restrict access to voting, even that seems to be in jeopardy). It means being able to oversee your elected official’s performance and, if unlawful, unsatisfactory or corrupt, hold them accountable. But how can you do that when getting the information necessary to make informed decisions may be highly restricted, or simply not available?

If politicians can delete text messages at will, claiming that they are “transitory,” and if cities can claim records don’t exist, or at least not be compelled to produce them under any real threat of consequence, how can those who wish to know the whole story hope to learn it?

It’s time for Massachusetts to compel its legislature to be held to the same open meeting act and public records law that applies to its local school departments and city councils.

Access to public information is the bare minimum for active participation in a democracy, and is the foundation of democracy itself. How are we expected to govern ourselves if we are neither allowed to attend meetings, nor see the records that result?