Auditor DiZoglio Calls Senate Public Records Bill a “Poison Pill” Aimed at Blocking Ballot Question

By Sam Drysdale

Auditor Diana DiZoglio says the Senate’s public records bill includes a “poison pill” designed to undercut November’s Question 1 before voters even cast their ballots. 

As senators prepare to vote Thursday on their version of a legislative public records bill, DiZoglio contends language declaring it the Legislature’s “sole and exclusive remedy” for obtaining records is intended to block any broader public records law approved by voters from ever applying to Beacon Hill.

The provision is an “unconstitutional” attempt to preempt the ballot initiative before Election Day, she said, telling the News Service she would take it to court if necessary.

It must first address 25 amendments, but the Senate is expected to approve the bill (S 3200) that leaders have described as a historic transparency overhaul. The bill would create a formal process for requesting legislative records, but it stops short of applying the state’s existing public records law to the Legislature. Instead, the bill establishes a separate and more limited records system for lawmakers, largely covering categories of records that are already publicly available and setting out how the public may request them. The Senate’s version would add some records not explicitly included in the House version.

The proposal is the Legislature’s late-arriving response to Question 1, the November ballot initiative that would broadly apply Massachusetts’s public records law to both the Legislature and the governor’s office, subject to existing exemptions. As recently as May, the Special Joint Committee on Initiative Petitions recommended the proposal to subject the Legislature and governor’s office to public records law deserved no legislative attention. 

“What stands out clearly is a poison pill the Senate is trying to pass along that makes it so any other law, including those passed at the ballot, wouldn’t be able to update their proposed changes,” DiZoglio said in an interview.

The provision she points to says that “Notwithstanding… any general or special law to the contrary, the procedure set forth in this section shall constitute the sole and exclusive remedy for obtaining access to records of the general court and no other provision of this chapter or any other law providing for public access to public records shall apply to the general court or a branch, committee, member, officer, caucus or employee thereof.” 

Supporters of Question 1, including DiZoglio, said the ballot question’s broad approach would provide substantially more public access than the Senate’s proposal, which instead establishes a separate public records framework specifically for the legislative branch and governor’s office. 

“The Senate is trying to create a special law for itself and prevent people’s voices from being heard at the ballot box by preemptively striking,” she said. 

She also questioned whether lawmakers can enact legislation that she believes would override a pending ballot initiative. 

“This is unconstitutional. People have a coequal right to the Legislature to create laws under our constitution,” DiZoglio said. “What does it mean if the Legislature can just go into session and draft laws that preempt ballot questions and upend the will of the people they supposedly represent, before they even have a chance to give their say? It’s a constitutional crisis.” 

The bill got the endorsement from good government group Common Cause, with director of the Massachusetts branch Geoff Foster saying at the time of the Senate bill’s roll out that he believed it could “sustain constitutional challenges.”

Whether the provision will ultimately survive legislative negotiations, supersede a voter-approved ballot law or withstand a constitutional challenge is unknown.

Asked about the bill, a spokesperson for Senate President Karen Spilka said in a statement “The Senate’s bill would write the Legislature into the public records law.”

“It has earned the public support of the ACLU of Massachusetts, Common Cause Massachusetts, and the Massachusetts Newspaper Publishers Association,” he said. “It is a significant and meaningful step forward in making the Legislature’s work more transparent and accessible to the people we serve, and Senate President Spilka is confident in the bill and wants to see it become law.”

DiZoglio argued that after the Supreme Judicial Court allowed the public records initiative to remain on the ballot after a challenge that was prompted by the Senate, legislative leaders shifted their strategy. 

“It’s certainly okay for them to update the law in a way that would actually be helpful, but they are doing this because their attempts to get it thrown out by the Supreme Judicial Court failed,” she said. “It survived the test of the SJC, when the Senate tried to get it thrown off the ballot. It was ruled constitutional. Because the Senate did not get their way with respect to having the SJC knock it off as they hoped to do, they’re now coming at it a different way.” 

“They want to nullify the ballot question before it is passed at the ballot box, because it will pass at the ballot box,” she added, saying, “We’ll certainly be taking legal action if the Senate does this stunt.” 

Transparency advocacy group Act on Mass echoed those concerns in a newsletter circulated on Tuesday, urging residents to oppose the bill. 

“S.3200 includes language that would supersede the impact of the proposed ballot question, by ‘solely’ allowing access to limited list of 19 types of records included in this bill. The kicker is, most of those records are already public!” organizing director Isabel Harper wrote in an action alert. 

The group argued the proposal would “create an entirely separate public records system for the Legislature,” and exempt legislators’ communications, including emails with lobbyists and between lawmakers. 

“One of the main strengths of public records law is that the public gets to decide what records are interesting to us,” Harper wrote. “More than 90,000 Massachusetts residents signed their name for the chance to apply existing public records law to the Legislature and the Governor’s office. We should have the right to decide that at the ballot, not have that choice made for us..” 

Supporters of the Senate bill view it differently. Senate President Karen Spilka has said the legislation, modeled in part on Pennsylvania’s Right-to-Know Law, would affirm “that the people of Massachusetts have a right to clearly see our work and how their tax dollars are spent.”

Spilka has also said the proposal builds on the Legislature’s recent rules reforms and is intended to provide a formal, enforceable process for obtaining legislative records while balancing transparency with the constitutional separation of powers. 

ACLU Executive Director Carol Rose asserts that the bill represents an “historic expansion of our public records law” that improves transparency “within a framework that is legally defensible.” 

DiZoglio, however, maintains that the legislation is designed to insulate lawmakers from the broader disclosure requirements contemplated by Question 1. 

“They’ve tried to get out of the public records ballot law every way possible, and if they can’t get their way under the constitution, they’ll undermine the will of the voters before they ever cast their voters,” she said. 

DiZoglio called on Gov. Maura Healey, asking her to veto “any unconstitutional legislation that undermines our access to the courts, as the House bill would do, or our right to legislate by ballot initiative.”

“We don’t know where the governor stands on proposed legislation to create their own public records law. We really need to hear from the governor on whether she’ll commit to opposing legislation that also clearly violates constitutional rights, and the House version that undermines the powers of the courts,” she said. 

The governor did not respond to questions sent by the News Service about her opinion on the Senate public records bill, including the provision DiZoglio targeted. 

Her spokesperson Jacqueline Manning sent a statement saying that the governor supported the ballot question to authorize the legislative audit, and that “she also voluntarily complies with the public records law and supports the ballot question to subject the Governor’s Office and the Legislature to the public records law.” 

The Healey administration has denied some public records requests during her time in office, claiming an exemption the courts granted to governor in the 1990s. She previously said she would not claim this exemption.

On GBH’s “Boston Public Radio” on Wednesday, host Jim Braude asked Healey if she would vote “yes” on Question 1, which he described as “making records held by the state Legislature and the governor’s office subject to public records law with two exceptions.” 

Healey asked “What the two exceptions?” then quickly, before he responded, jumped back in “I support that. I support public records.”

“I try to produce as many public records as I can, even though there is an exemption,” she said. “The office doesn’t, is not subject to the public records law, but you know, as governor, I’ve tried to be as transparent as I can.” 

Asked by Braude whether she’s “happy” with what the Legislature “is doing or not doing around its own exemption from public records law,” Healey replied that she didn’t know. 

“I don’t know all the details either, I don’t know what the latest is,” she said. 

Separately, DiZoglio said her lawsuit seeking to compel legislative leaders to turn over records related to the voter-approved legislative audit law continues to move forward.

Attorney General Andrea Campbell filed a motion this spring to strike DiZoglio’s attempt to secure outside counsel, but eventually recused herself, and the court declared the question of counsel a moot point. Attorney Shannon Liss Riordan will represent the auditor’s position as a special assistant attorney general. 

The litigation is now proceeding on the broader question of whether the courts can compel the Legislature to produce records responsive to the auditor’s requests. 

DiZoglio said her office is currently awaiting a court date.