Just two days after voters approved a law widening access to public records, legislative leaders are signaling that changes remain under consideration.
Over 85% of voters cast ballots in support of Question 1, which newly subjects the Legislature and governor’s office to the state’s existing public records law, but top Democrats who are moving their own more restrictive alternative to the voter law (H 5469 / S 3244) indicated after Tuesday’s election they may not let the ballot question be the final word.
“As with many ballot measures, there are details to be worked out, but it’s clear that this is something the voters want and deserve,” said a statement from Senate President Karen Spilka, when asked if the Senate will implement the measure as written or try to change it.
The News Service also asked Spilka’s office if she thought the measure approved by the voters is constitutional, and if the will of the voters on the question influences Spilka’s thoughts about the reforms currently being negotiated by House and Senate lawmakers to pass their own public records law.
“Massachusetts voters want greater transparency in state government—and we agree. The public should absolutely have a process to request and access documents from the Governor and the Legislature,” says Spilka’s statement in response, before adding “there are details to be worked out.”
The comments point to a simmering tension. Voters frustrated with the Legislature are increasingly turning to the ballot to make laws, but the Legislature has in turn has looked at ballot laws as statutes that they can alter and amend.
In March, the Senate used a rarely invoked constitutional provision to seek advisory opinions from the Supreme Judicial Court on whether the public records ballot question was constitutional. The Senate order requesting the court’s opinion said the petition raised “grave doubt” about whether it conflicts with constitutional protections governing legislative independence, and could intrude on legislative privilege, including the right to “freedom of deliberation, speech and debate.” The court determined that the measure could proceed with the ballot process, but declined to resolve several of the most consequential constitutional questions raised by the Senate — including whether the measure would infringe on legislative privilege, violate separation of powers, or encroach on each chamber’s authority to set its own rules.
Legislators did not approve alternatives to the initiative petition until June and July, after the question was on its path to the ballot. Legislators created new rules this session that will enable them to take up their alternative plan during lame-duck sessions. Under old rules, changes to ballot laws were more likely to be considered in the next legislative session.
State Auditor Diana DiZoglio has said she would “absolutely” consider legal action if lawmakers pass a narrower public records bill after Question 1 wins, calling that prospect a potential “constitutional crisis.” Massachusetts Fiscal Alliance Executive Director Paul Craney says his group is already talking with national organizations about litigation.
Gov. Maura Healey has said she would veto any legislation that looks to mitigate the language of Question 1.
John Griffin, executive director of Partners in Democracy Massachusetts Action, which helped push the ballot measure, addressed the question of potential legislative alteration during a press conference on Wednesday.
“The people spoke loudly and clearly, over 80% in favor of the public records law,” he said. “And our primary interest is making sure that the voice of the people are honored and that that law is implemented as we go forward. I think the people have said what they want to have done, and our view all along is that democracy renovation means that we have to honor the voice of the broad, diverse general electorate that spoke [Tuesday], and they spoke very clearly.”
During a press conference on Thursday about Question 9, which over 67% of voters supported to uphold a law related to firearm safety, reporters asked Spilkaand Sen. Cindy Creem about their future plans for public records. Creem is the lead Senate negotiator on the committee hammering out details with the House on the legislative bill.
A reporter asked Spilka if the Legislature had plans to avoid Question 1, and Spilka redirected.
“I’d like to focus now on the gun safety bill. If there’s any — the fact that it passed so overwhelmingly, if there’s any questions on that, I’d like to take those. That’s what we’re here for today,” she said.
After taking a question on the firearms bill, Creem stepped forward to the microphone before reporters.
“So, we heard the voters. We know exactly the same numbers you know, and we’re working hard to consider the wishes of the voters and really to also do what our constitution needs to be done,” Creem said. “So I can’t say where that is going to end — but, we’re not tone deaf. But we’re balancing their interests with the right to preserve the constitution.”
The News Service later caught up with Creem and asked about the governor’s assertion that she would veto any law that sought to mitigate the ballot question.
“I haven’t talked to the governor,” Creem said.
Asked the same questions as were sent to Spilka’s office, House Speaker Ron Mariano’s communications director did not address the questions and pointed to remarks the speaker made on the House floor in June when the House passed its public records bill and Mariano “spoke to his concerns with the ballot question.”
During that speech, Mariano called the ballot question “unconstitutional.”
“The simple reality is the public records ballot question and the existing public records framework use a method of enforcement that we believe to be clearly unconstitutional when applied to the legislative branch,” he said.
Mariano also said “unconstitutional” enforcement would stop the ballot law that voters approved from going into effect.
“This legislation produces the same practical result as the ballot question, making a trove of legislative records public without using an unconstitutional method of enforcement, which would prevent the law from ever going into effect,” he said.
Mariano explained during his June speech why he thought the question was unconstitutional: “The secretary of the commonwealth is an executive branch officer. If the secretary will give the authority to compel the Legislature to produce records, adjudicate disputes over legislative documents or otherwise supervise the Legislature’s internal affairs, that would place an executive officer in a position of oversight over a co-equal branch of government. Furthermore, the separation of powers principle allows legislators, all of us, to debate, negotiate, make decisions independently as the people’s elected representatives ensuring that active legislative deliberations and related documents are constitutionally protected.”
The differences are not merely technical.
The ballot question would bring most records held by the Legislature and governor’s office under the state’s existing public records law, subject to exemptions including policymaking documents and certain constituent communications.
It would be effective Jan. 1, 2027, per the text of the question.
The legislative proposals currently in negotiations instead create defined categories of “legislative records” that can be requested. Most of the listed records are already publicly available. Reps. Alice Peisch, Andy Vargas, and David Muradian and Sens. Creem, Cindy Friedman and Kelly Dooner are on the negotiating committee, which has mostly conducted its business in private.
If the conference committee agrees on a bill outlining an approach to public records access for the Legislature and the govenor’s office, its legislation is not subject to amendment and would be put before lawmakers for up-or-down votes.
Both the ballot question and bills generally require the governor’s office to more fully open its books.
Among the major differences in the approaches is the Legislature’s protection of contracts and settlements.
Question 1 would generally make legislative settlement agreements public, subject to exemptions such as privacy. The Senate President’s office says Senate settlements are already public, but the Senate bill does not specifically list settlement agreements among available records. It would make legislative contracts and procurements public, with exceptions. The House bill also excludes settlements, offering the auditor only a listing of them but not the text, and does not make legislative contracts public.
Another major dispute concerns enforcement.
The ballot question would send disputed records to the Supervisor of Records in the secretary of state’s office, while the legislative proposals establish a separate review procedure for legislative records to go through the courts.
The House’s bill also includes language that would narrow the scope of a voter-approved legislative audit and create a formal process for the audit to proceed.
Question 1’s place on the ballot is part of a larger reckoning with voter frustration over transparency — Massachusetts is one of two states in the country where the Legislature and governor’s office are not subject to public records law, according to the National Conference of State Legislatures.
