The Consequences of Withheld Information

Below is a Sunshine Week op/ed written for Gatehouse Media by NEFAC Executive Director Justin Silverman. The column can also be read here.


gatehouse oped

It’s Sunshine Week, an annual celebration of transparency in government.

Freedom of information advocates throughout the country will spend the next several days reminding communities about their right to obtain public records and the need to make those records more accessible.

In Massachusetts, the timing is especially appropriate.

A committee of House and Senate legislators is currently debating how to best overhaul the commonwealth’s abysmal public records statute. Leaders in both branches have expressed concern about the law and have made reform a priority. Whether their efforts will restore respectability to this important statute or fall flat largely depends on the strength of enforcement mechanisms included in their final proposal, as well as the cost controls for obtaining records and the firmness of compliance deadlines imposed on custodians.

While these details are crucial to the reform effort, often lost in the discussion are the personal – sometimes devastating – consequences of withholding information that rightfully belongs to the public.

Sunshine – a reference to a famous quote attributed to Justice Louis D. Brandeis – can be the difference between life or death. That’s not hyperbole, as any reader of Jenifer McKim’s “Out of the Shadows” series for the New England Center for Investigative Reporting would know. McKim investigated the failings of the Massachusetts Department of Children and Families, finding that kids were dying because of a lack of oversight by this government agency. Her reporting required months of negotiating with public officials, dozens of public records requests and thousands of dollars in fees for those records.

“It was only then,” she said, “did details began to slowly emerge of children whose stories had not been heard.”

With the help of a team of interns, dedicated colleagues and pro bono legal representation, McKim managed to overcome the weak public records law and, in her words, expose “a series of missteps, missed opportunities and systemic flaws that failed to save children who in the end had nobody to protect them.”

As McKim and her colleagues found, sunshine can be evasive and expensive. For journalists and media organizations excessive time and cost has, unfortunately, become part of the job. But for private citizens who aren’t responsible to readers, these challenges are often enough to deter them from taking any action at all.

Michael A. Champa, however, decided the risks of inaction were simply too high. Champa, a Boston resident, believed schools throughout the state were unfairly compensating parents of disabled children for the additional educational resources those children needed. The process seemed unbalanced in favor of wealthy families – Champa just didn’t have the evidence to support his hunch. So, he requested the settlement agreements made by one school district and when denied those agreements, he fought all the way to the Massachusetts Supreme Judicial Court despite the significant personal expense due to legal fees. Champa won the case and obtained the records that should had been provided when he first asked for them.

“A review of the agreements revealed what we feared most,” he said. “Kids were not being treated fairly, and parents are increasingly being required to assume the cost of educating their special-needs children despite the statutory guarantee of free and appropriate public education.”

It shouldn’t be this difficult to learn about our government. Whether an award-winning journalist or a concerned citizen, we all have an interest ensuring transparency. We all have so much to lose by not knowing, by not understanding, by not seeing what occurs in those dark corners of government. That is why sunshine is needed. To not just lighten, but to enlighten.
Sunshine Week is about remembering that access to public records is not a niche interest or simply a gadfly’s pastime. It’s not about chasing paper and sharing inconsequential information. It’s about the wellbeing of every Massachusetts resident. In the words of Champa, public access is “the face of ordinary citizens trying to understand their government in order to make an informed decision or expose a wrong.”

Here in Massachusetts, with a reform bill being negotiated right now on Beacon Hill, Sunshine Week is also a startling reminder of what’s at stake.


NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here. Major Supporters of NEFAC for this year include: The Providence Journal Charitable Legacy Fund, The Boston Globe and Boston University.

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