Senate OKs records access bill as November ballot fight looms

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BOSTON — Senators passed a bill Thursday overhauling public access to legislative records, and added a press shield to protect journalists from being compelled to reveal confidential sources.

The Senate approved the bill 34-6. The debate focused largely on whether the bill could interfere with a November ballot question that would broadly apply the state’s records law to Beacon Hill. 

Republicans unsuccessfully sought to strip language critics say could undermine the ballot measure, while Democratic Sen. John Keenan failed to persuade colleagues to adopt amendments further expanding public access to legislative records. 

The proposal is the Legislature’s late-arriving response to Question 1, the November ballot initiative that would broadly apply Massachusetts’ public records law to both the Legislature and the governor’s office, subject to existing exemptions.

The Senate bill would create a formal process for requesting legislative records, but it stops short of applying the state’s existing public records law to the Legislature. Instead, the bill establishes a separate and more limited records system for lawmakers, largely covering categories of records that are already publicly available and setting out how the public may request them. The bill would also create a new section of the records law to apply to the governor’s office.

The Senate’s version would add some records not explicitly included in the House’s version of the bill.

The Senate bill is endorsed by the good government group Common Cause Massachusetts, the American Civil Liberties Union of Massachusetts, and the Massachusetts Newspaper Publishers Association. 

“For too long, Massachusetts has remained one of the only states in the country where the press and the public cannot access records of the legislature and governor,” said Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, in a statement. “This bill would finally change that. We commend the Senate for taking this long-overdue step.”

ACLU Executive Director Carol Rose said the bill represents an “historic expansion of our public records law” that improves transparency “within a framework that is legally defensible.” 

But State Auditor Diana DiZoglio and transparency advocacy group Act on Mass opposed the bill and said it’s meant to nullify the ballot question. Act on Mass organizing director Isabel Harper argued the Senate bill would “create an entirely separate public records system for the Legislature,” and exempt legislators’ communications, including emails with lobbyists and between lawmakers. 

The Senate’s bill is expected to be sent into closed-door negotiations with the House. Those negotiations will also include House-approved language to narrow the scope of the legislative audit that voters in 2024 authorized DiZoglio to conduct.

Shield for journalists

Senators adopted an amendment from Sen. Becca Rausch that would establish a statutory press shield protecting journalists from being compelled to disclose confidential sources except under limited circumstances.

“As we see repeated attacks on the press, we need to fix it now,” she said.

Rausch said Massachusetts remains “one of only nine states in the country that does not yet have a press shield law.”

She explained that the amendment would prohibit government bodies from compelling journalists to reveal confidential sources except upon “clear and convincing evidence” that disclosure is necessary and serves an overriding public interest.

“This amendment and the base bill are two sides of the same coin, making sure the free press can access legislative and gubernatorial records, and protecting journalistic sources so the free press can do its job,” Rausch said.

Quoting John Adams, she concluded, “The liberty of the press is essential to the security of freedom in a state,” adding, “Democracy dies in the absence of a free press.”

Senate bill vs. ballot proposal? 

A provision in the Senate bill declares it the “sole and exclusive remedy” for obtaining legislative records. Critics argue that could limit or undermine implementation of Question 1 if voters approve it in November. 

Republicans attempted to rewrite the legislation to address these concerns. 

Sen. Kelly Dooner, R-Taunton, proposed striking the “sole and exclusive remedy” language.

“The voters will soon have an opportunity to weigh in on the future of the legislative transparency process,” Dooner said. “No matter what your feelings are on the ballot question, attempting to predetermine its legal effect before the people of Massachusetts have a chance to cast their votes is not good lawmaking.” 

She said the “sole and exclusive” clause “could be interpreted as limiting future public records laws or limiting the will of the voters.” Her amendment to delete it was rejected on a voice vote. 

A Democrat’s transparency proposals rejected

Keenan, D-Quincy, unsuccessfully pressed a series of amendments aimed at expanding transparency further. 

One proposal would have made public the recommendations committee chairs provide members when they advance bills by electronic polls.

“The bill, as written, makes a legislative record of the votes on that poll,” Keenan said, adding that his amendment was needed “so that those who wish to find out what happened in committee can get a full picture of what happened.”

Another amendment would have required the Senate Journal to identify which senators were physically present for roll call votes.

Highlighting sparse attendance during debate, Keenan paused and counted aloud, “One, two, three, four, five, six, seven, eight, nine. Nine, out of 40,” before arguing the public should know not only how senators voted but whether they participated in person.

“It’s just to make ourselves more open, more transparent, and more accountable,” Keenan said.

The Senate also rejected Keenan proposals to make internal legislative audits and lawmakers’ financial disclosure statements official public records, and to make all records more readily available on the Legislature’s website. 

How the Senate and House versions differ

Senate President Karen Spilka’s office said the bill is modeled on Pennsylvania’s “Right-to-Know Law” and outlines the process for members of the public to request legislative records, including a judicial appeals process for denied requests. 

It includes 19 categories of documents that would be considered “legislative records,” including legislation, resolutions, summaries, fiscal notes, amendments, notices of committee hearings, records of hearing attendance, hearing transcripts and recordings, written testimony solicited and received by a committee, legislative journals, recorded votes, and ethics disclosures.

Much of that information is already informally considered to be public records and is made publicly available on the Legislature’s website in real time, but under the Senate bill, legislative offices would have up to 10 business days to provide it to a requester.

The Senate bill includes two categories of legislative records that the House did not: a list of the names, public office addresses, job titles and salaries as maintained by human resources, and procurement and contracts for goods and services unless they are otherwise exempt. The House definition included “legislative caucuses and their members,” but the Senate proposal does not.

Like the House bill, the Senate bill treats the governor’s office one way and the Legislature another. But unlike the House version, the Senate bill would not simply apply the existing public records law to the governor’s office.

Instead, it would create two new parts of the public records law (new subsections specific to the governor’s office, and an entire section for the Legislature) with specific exemptions and carveouts for each. For the governor’s office, the Senate bill would require the designation of a records access officer and compliance with the public records chapter. But it also grants an added ability for the executive to withhold “communications, memoranda, drafts or other documents relating to developing policy positions.”

“By writing the Legislature and the Governor into the public records law, we are affirming that the people of Massachusetts have a right to clearly see our work and how their tax dollars are spent,” Spilka said in a statement.

The Light contributed reporting.