Mass. Attorney General Dragging Feet on Records Referral

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By Colman M. Herman

Massachusetts Attorney General Maura Healey is dragging her feet big time in a matter involving my efforts to obtain copies of racial and gender complaints filed by employees of the Boston Water and Sewer Commission against the commission.

When the sewer commission refused to produce the responsive records and only provided a skeletal summary of the 26 cases involved, I filed an appeal in November 2018 with the supervisor of public records in the secretary of state’s office. It was to be the first of three successful appeals in this matter.

When the sewer commission continued to refuse to produce the responsive records, Supervisor Rebecca Murray turned the case over to Attorney General Maura Healey in April 2019 for an enforcement action, because the supervisor does not have enforcement powers — a major shortcoming of the public records law.

That was seven months ago and Healey has failed to issue her ruling. But along the way, Carrie Benedon, Healey’s director of open government, modified the supervisor’s order and has given the sewer commission more opportunities to make its case.

I have written to Benedon, and Healey’s first assistant attorney general, Mary Strother, seeking an explanation for the excessive delay. I have even written directly to Healey. What I got back was crickets, crickets, crickets.

The Takeaway: What is needed is for the public records law to be changed to give enforcement powers to the supervisor of public records.

While on the subject of public records referrals to Attorney General Healey, I want to point out here what I believe to be her misinterpretation of her authority in such matters as it pertains to modifying the supervisor’s orders.

It seems to me that the attorney general has two options when a public records case is referred to her office: to enforce the supervisor’s order or not to enforce the supervisor’s order.

This is borne out by what the public records law states: “If an agency or municipality refuses or fails to comply with an order issued by the supervisor of records, the supervisor of records may notify the attorney general who, after consultation with the supervisor of records, may take whatever measures the attorney general considers necessary to ensure compliance.” M.G.L. c. 66, 10A(b)

Note that no mention is made of the attorney general being empowered to modify the supervisor’s order.

Colman M. Herman is a freelance writer and reporter living in Boston.

Above photo provided by Flickr user BC High and used with cropping under a CC 2.0 license

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