BOSTON – Voters in Massachusetts will soon decide whether to expand the state’s public records law to cover the legislature and governor’s office, holding them to the same standards as state agencies and local governments.
Under the existing law, Massachusetts is the only state in the country where the governor’s office, legislature and judiciary are exempt from complying with public records requests, The Boston Globe reports. The amendment, proposed by State Auditor Diana DiZoglio, expands the law to cover the legislature and governor’s office, with exemptions for information about constituents’ government benefits and in-progress policy positions.
“There are a number of longstanding issues with the law that make it one of the weakest in the country,” said attorney Justin Silverman, the executive director of the New England First Amendment Coalition. “You have three major branches of government that are not subject to, or are arguably not subject to, the public records law, and that’s a lot of records.”
Under the ballot proposal, two would be subject to more scrutiny. “There would be more transparency and ultimately more accountability,” Silverman said.
There are no formal groups organized to oppose the ballot question, according to Secretary of the Commonwealth William Francis Galvin, but a majority of the legislature’s Special Joint Committee on Initiative Petitions voted to take no action.
“Contrary to assertions made by proponents, the Committee notes that the legislative process in the Commonwealth is already structured to be publicly accessible,” the majority wrote. They also argued the bill will create an administrative burden for compliance and enforcement.
Senate Assistant Minority Leader Ryan C. Fattman, in a minority report, recommended adoption of the measure.
“The public entrusts elected officials with significant authority, and with that authority comes the expectation of transparency, accountability, and accessibility,” he wrote. “Transparency is not a burden, it is a core feature of good governance, and one that residents should never be denied.”
Senate President Karen Spilka said she opposes the measure, citing constituent privacy.
“It’s my understanding that the way this ballot initiative may be written is that confidential information about our constituents collected through our offices may not, in every circumstance, be able to be excluded,” she said. “People call up and talk about incredibly personal information, it could be immigration, it could be domestic abuse.”
The proposal exempts communications between a member’s office and their constituents, so long as the communications “reasonably relate to a constituent’s request for assistance in obtaining government-provided benefits or services or otherwise interacting with a state or federal agency.” Other existing exemptions cover identifying information for victims of sexual assault and domestic violence.
That the legislature and governor’s office are exempt from the public records law were among the reasons the SPJ Freedom of Information Committee selected Massachusetts for the 2026 Black Hole Award – an “annual dishonor recognizing government entities that demonstrate a troubling lack of transparency and disregard for the public’s right to know.” (SPJ New England nominated the state for the award.)
David Cuillier, the director of the Freedom of Information Project at the Brechner Center for the Advancement of the First Amendment at the University of Florida, took issue with the policy positions exemption, which he said covers “the very records the public needs to understand how the sausage is made.”
“Public record laws are created to help us understand what our government is up to, and that includes the records documenting the decision-making process,” Cuillier said. “In federal FOIA, the pre-decisional exemption is entirely abused and many are calling for its removal. No need to add it to a state law.”
Cuillier is also a member of the Federal FOIA Advisory Committee, which provides guidance to the national archivist on how to improve the nation’s open records law. He has testified before Congress on the subject three times.
“I know that government officials say they need the exemption so that they can communicate freely when crafting legislation, but the public’s right to know should outweigh their pangs of discomfort. It takes backbone to effect change,” Cuillier said.
In its report, the committee’s majority argued the exemption was not broad enough.
“Such an exemption is limited and temporary, and it will chill open communications by lawmakers in a manner that raises significant constitutional concerns, particularly around legislative speech and debate protections,” the majority wrote.
Silverman said that those arguments could mean the ballot proposal would not achieve all of its goals. “There are arguments that the ballot question itself, if it were to be passed, would just lead to years and years of litigation,” he said. “There seems to be some disagreement generally about ultimately, what would result from that litigation. There’s also some questions as far as separation of powers and whether the state constitution would allow the legislature to be subject to the public records law in its entirety.”
This is also what happened with another one of DiZoglio’s proposals, a 2024 ballot initiative permitting her to audit the legislature, which passed with 71.6 percent of the vote. Since its adoption, the legislature has argued the audit violates the separation of powers, leading DiZoglio to sue in February for failing to comply with her requests for documents. Attorney General Andrea Campbell has supported the legislature’s position.
A Competing Proposal
A bill pending in the state legislature would instead make available a more limited set of records, called “legislative records.” The bill, known as S.3200, lists 19 specific categories of legislative records, rather than creating a presumption that all records are public as in the ballot question and the existing public records law. It would also apply the existing public records law to the governor’s office.
Silverman did not take a position between the two competing proposals, saying the New England First Amendment Coalition supports any effort to make the government more transparent, given the flaws with the current law.
“You have a law that really doesn’t really live up to, I think, its potential and the intention of giving the public – all of us, in every community in Massachusetts – information it needs to learn about government and to make sure that we’re monitoring those that are making decisions on our behalf,” Silverman said.
Cuillier said the Senate bill moves in the wrong direction.
“The senate bill would likely make things worse for government transparency in Massachusetts. It codifies secrecy, and that is never a good thing,” he said. “The bill is framed like the records laws of old, pre-1966 – listing what will be public – which implies everything else is not public.”
“Instead it should say everything is public and then provide for reasonable discretionary exemptions on what information can be redacted,” Cuillier said.
The Senate bill would also require that requestors who wish to appeal a denial of access to records without filing in court do so by filing a request for reconsideration with the legislative records custodian, rather than an independent official like the supervisor of records.
“It’s kind of silly to have appeals submitted to the legislative office coordinator – the person who initially says no the first time? Appeals should go to an independent entity,” Cuillier said.
Neither proposal addresses all of Silverman’s concerns, particularly about enforcement.
“With the supervisor of records, you have an administrative appeals process that really has no teeth and no true enforcement power,” Silverman said. “But I’m not convinced that having the legislature supervising its own adherence to the law is the best way to go either, because you don’t have any kind of independent judgment on whether lawmakers would be following the law. That judgment would be made by the lawmakers themselves.”
Said Silverman, “I think this question of enforcement of public records law in Massachusetts, unfortunately, is going to continue. It’s going to continue to make transparency difficult, regardless of whether or not the ballot question or this particular bill succeeds.”
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