PIONEER INSTITUTE PUBLIC POLICY RESEARCH July 15, 2015 Open Meeting Law Advisory Commission Office of the Attorney General ‘One Ashburton Place Boston, MA 02108 Dear Commission Members, Its our intent to request an advisory opinion of the Attorney General pursuant to 940 CMR 29.08 regarding the constitutionality of the legislature’s exemption from G.L. c. 30A, §§18-25 (the “Open Meeting Law”). The Open Meeting Law Advisory Commission plays an important role in considering and discussing complex issues related to government transparency and making recommendations to the ‘Attomey General, This letter introduces you to our position in advance of our formal request for an advisory opinion. We are providing this summary to assist you with your analysis once we submit our formal request to the Attomney General. The Argument ‘There is a lot of justifiable talk about the need for government transparency these days, but the concept is far from new. In fact, the first Massachusetts transparency laws date back to 1851. It was in that year when the notion of government records shifted from being the property of government to belonging to the public. In 1973, the state legislature expanded the definition of what constituted a public record and in 1975, it enacted open meeting laws. Together, these transparency laws were meant to promote a more effective, accountable and responsive government. In the wake of the looming Watergate scandal, the legislature seemed to understand that public confidence in government cannot exist without transparency. ‘That was then, however, and legislative attitudes seem to have changed. Many Massachusetts state Icaders seem to agree at least publicly that open government is fundamental to the democratic process. Yet, the Reporters Committee for Freedom of the Press ranked our state among the weakest in the nation for governmental transparency. A principal reason for the low ranking? Our legislature has exempted itself from the Commonwealth's Open Meeting and public records laws. Pioneer Institute questions the constitutionality of those exemptions. Relevant to your Commission, we plan to ask the Attomey General to provide an advisory opinion on the constitutionality of the legislature's exemption from the Open Meeting Law. Our contention is that the legislature's sweeping utilization of its self-exclusion from the Open Meeting Law impedes the public’s ability to exercise the rights conferred to it under the Massachusetts Constitution. For example, Article V of our Commonwealth's Declaration of Rights requires that the branches of government be accountable to the people “at all times”. Restricting the public’s access to the 185 Devonshire Street, Suite 1101, Boston, MA 02110 | T: 617.723.2277 | www.pioneerinstitute.orglegislature's meetings fundamentally undermines that basic constitutional right because a public kept in the dark about critical policy decisions cannot hold its elected representatives accountable at any time. Lack of legislative transparency is inconsistent with the public’s expectation. The Open Meeting Law provides that “all meetings of a public body shall be open to the public” but the Commonwealth’s Open Meeting Law does not apply to the legislature because it wrote an exception for itself. While there are reasonable exceptions for matters related to, for example, negotiations and personnel issues, the law applies to all “public bodies” as defined by the law. The problem for the public is that the legislature left itself out of that definition. Legislative accountability is foregone the moment doors are closed to the ‘media and the public, Public oversight is necessary to ensure that the legislature provides an “equitable ‘mode of making laws” in a manner that is “reasonable and just,” as required by our Constitution. ‘The breadth of the application of the legislative exceptions grossly distorts our Constitution’s intent, rendering public oversight impossible. Finally, the Constitution goes so far as to vest the Commonwealth’s citizens with the right to “give instructions to their representatives.” The legislature's lack of transparency negates the public’s ability to exercise this right because, of course, access is required to reasonably determine what instructions should be given. Pioneer Institute believes that the legislature is the ultimate public body and that the legislature's ‘exemption from the Open Meeting Law is contrary to the spirit and the words of our state Constitution and negatively impacts the public’s ability to actively participate in the democratic process to its fullest constitutional capacity. While the Massachusetts’ Supreme Judicial Court has upheld the exemption, it did so narrowly, interpreting the statutory provisions of the law at face value without addressing the broader question of the law's constitutionality, Our request for an advisory opinion from the Attorney General will analyze in detail a number of constitutional issues that will demonstrate that the legislature's exemption from the Open Meeting Law is an unwarranted and unconstitutional usurpation of the rights and powers reserved by the people of Massachusetts Our democracy is severely compromised if the people are barred from exercising their constitutional rights by the overly broad implementation of a statute. We have one of the nation’s longest histories of transparency laws. It’s high time for the legislature to step up and respect our history and Constitution and we hope that, following your consideration of our upcoming request for an advisory opinion, you agree, Please let us know if you have any questions Mary &4nnaughton Jott Sivotetta Dire€or of Government Transparency r. Fellow, Law and Policy