Massachusetts public records law has long been an embarrassment. We’re one of just a few states that exempt both the governor’s office and the Legislature. Too often, this has made it frustratingly difficult for residents to understand how our state government operates.
For more than a decade, the ACLU of Massachusetts has worked closely with nonpartisan coalition allies, including Common Cause and the Massachusetts Newspaper Publishers Association, to press reforms that would make the legislative process more transparent.
We understand and respect the need for private deliberation by public officials — indeed, that’s written into Article 21 of our state constitution. But democracy depends on “We the People” holding our elected representatives accountable. After all, they work for us! To do that effectively, we need to be able to see what’s happening under the imposing golden dome of the State House.
And “we” doesn’t just mean lobbyists, reporters, or elected officials.
Public records law exists to ensure that ordinary people — anyone! — can file a request and have the right to receive certain information about how our government operates and what public officials are doing. It’s a cornerstone of our democracy.
Here’s an example: Our organizations have long believed that residents deserve to know more about the committees that propel so much of the Legislature’s work.
We should know what questions our elected officials ask in committee, and how they vote. We should be able to read the written testimony submitted by experts and advocates hoping to shape a bill. When a bill makes it to the floor, we should know what amendments have been offered, by whom, and what happens to them. We should also be able to read the rules that the House and Senate have adopted to shape their day-to-day work.
All that might sound obvious — but for decades, the Massachusetts Legislature treated much of this information as confidential. And the rest was only public by the Legislature's grace, not as a matter of law.
In recent years, in response to public pressure, the Legislature has begun to release more information about its operations. This has been a positive shift. But, quite frankly, it doesn’t go far enough. Internal rules about what to release can always change. They can be suspended on a whim or altered from year to year. The public’s right to access certain information ought to be codified into state law — and We the People should have a path to appeal if access is wrongly denied.
The last time the state passed meaningful public records reform was in 2015, more than a decade ago. The ACLU of Massachusetts and our coalition allies were deeply involved in the debate and helped win several important reforms, including new standards to prevent agencies from charging exorbitant fees for document requests and to curb delays and denials of access.
We remain proud of those achievements but always recognized that the reforms were incomplete: The Legislature and the governor’s office remained exempt from any public records requirements. Our organizations advocated for further reform but could not gain momentum.
So, when the House unexpectedly revived the issue, we resurrected a draft framework that our coalition had pitched years ago and shared it for consideration.
This framework puts the governor’s office under existing public records law, alongside state agencies. It creates a new, parallel law for the Legislature and sets forth a specific list of the types of documents and records that the House and Senate must make available to the public.
Tucking the Legislature into the existing public records law might sound easier, but it would create thorny legal issues about its enforceability, raising the specter of infinitely delayed implementation while litigation plays out. For instance, that approach would lead to constitutional challenges over the separation of powers, since subjecting the Legislature to existing public records law would require giving the Secretary of the Commonwealth, Attorney General, and judiciary authority over the Legislature’s actions.
We also know that applying existing law to the Legislature would put a great burden on individual legislative offices to evaluate and decide how to respond to wide-ranging public records requests. Given that most offices have just one or two staff members, this would be a recipe for bureaucratic logjams — and even more legal wrangling over which records should be public.
The framework we developed a decade ago avoids those issues by creating a parallel statute for the Legislature, tailored to its unique circumstances. It establishes clear guidelines for the type of records that must be made public and creates a centralized, streamlined system for each legislative chamber to receive and respond to requests.
This approach respects the separation of powers and protects lawmakers’ private deliberations, as required by our state constitution. It protects constituent privacy by ensuring that correspondence they send to their elected officials, which often includes sensitive and very personal information, is not subject to release.
And it meaningfully improves transparency, giving Bay Staters the legal right — yes, finally, a right in statute! — to documents providing a wealth of insight into legislative and gubernatorial operations, finances, audits, ethics, and where individual legislators stand on important policy decisions.
We were pleased that the House adopted this framework as the backbone of the public records provisions in its transparency bill, H.5050. Reflecting lessons we learned in the last round of public records reform, the bill also contains the same access safeguards as the current law, like short timelines for responding to requests and rules to prevent overcharging for access to these documents. And it establishes the right to appeal: Residents who believe they have wrongly been denied access to legislative records can petition the Supreme Judicial Court of Massachusetts.
We want to ensure that everyday citizens — We the People — have ongoing, direct access to documents that help us understand how our government works, improving our ability to hold elected officials accountable.
The House passed these important reforms earlier this week. The Senate may have different views on how to shape and strengthen the public records law. That’s how the legislative process works — step by deliberative step. We look forward to working with both chambers in the coming weeks to pass reforms that expand Bay Staters’ direct access to public records, strengthening government by and for the people.
Gavi Wolfe is the legislative director of the ACLU of Massachusetts.