To the Editor;
Public-records laws rest on a basic democratic premise: government works for the public, and the public should be able to see how government does its work. Massachusetts has long occupied an unusual place in that system. Its public-records law does not apply to the records of the Governor’s Office, the Legislature, or the judiciary in the same way it applies to executive agencies. The Governor’s Office itself acknowledges that its records are not subject to the state public-records law.
That is not merely a technical quirk. It raises a fundamental accountability question: What meaningful right to know does the public have when institutions exercising enormous constitutional power sit outside the ordinary statutory process for obtaining their records?
This system traces back to a 1997 Supreme Judicial Court decision, Lambert v. Executive Director of the Judicial Nominating Council. The case involved records connected to the Governor’s constitutional responsibility to nominate and appoint judges. The SJC held that those records were not public records under the statute. The reasoning rested on statutory language and separation-of-powers principles.
The ruling was narrower than the sweeping transparency debate that followed it. But its consequences are broader. Massachusetts has developed a structure in which access to records of its constitutional branches can depend substantially on voluntary disclosure, internal rules and constitutional principles rather than the ordinary statutory mechanism available for records held by executive agencies.
That matters even more in the digital age. Government business now leaves an enormous documentary trail: emails, calendars, memoranda, electronic messages, draft legislation and policy documents. The question is not whether every one of those records should automatically become public. Legitimate protections can exist for constituent privacy, privileged legal advice, personal information and genuine deliberative interests.
The harder question is whether an entire branch of government should stand outside the ordinary public-records framework.
Massachusetts lawmakers confronted that question directly in 2026. The House passed H.5469 on June 3 by a vote of 125–28. The Senate subsequently substituted its own proposal, S.3200, which passed 34–6 on July 30. The House rejected the Senate amendment the next day, and a conference committee was appointed.
At the same time, a proposed ballot initiative sought to extend public-records requirements to the Governor’s Office and Legislature while protecting specified categories of information. The constitutional issues are substantial. Legislative independence, separation of powers, and protections for legislative speech and debate cannot simply be wished away.
That is precisely why this debate matters.
The choice is not necessarily between total secrecy and unlimited disclosure. Other states have demonstrated that public access can coexist with carefully defined exemptions and, in some cases, separate rules for legislative records.
Massachusetts now faces the constitutional question that its existing framework has postponed for decades: How can the Commonwealth guarantee meaningful public access to the records of those exercising public power while preserving the constitutional independence of the branches?
The answer cannot be found in slogans about either transparency or privilege. It has to be found in law, clear rules, defined exemptions, and an enforceable process for resolving disputes. In a democracy, the public’s right to know cannot depend entirely on whether those in power choose to provide the information.
Eileen J. Marum, MPP
Chair, League of Women Voters SouthCoast
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