Why are FOIA requests in MA being stonewalled?
Last March, Boston Globe business reporter Todd Wallack asked each of Gov. Deval Patrick's eight executive agencies for copies of any "separation, severance, transition, or settlement agreements" made since January 1, 2005 between the agencies and their employees that include compensation, benefits, or other payments worth more than $10,000, which he subsequently narrowed to $50,000 or more. According to Wallack, each of the eight agencies assembled the documents, but instead of handing them over to him, forwarded them on to the governor's office.
About three months after he filed his eight requests, the records were turned over to Wallack by the governor's office, but with the names and other identifying information regarding the employees redacted based on a variety of claimed exemptions. "While we understand that employee names, positions, and salaries are publicly available, the types of agreements you have requested are far more personally sensitive," wrote Mark Reilly, the governor’s attorney, in a letter to Wallack contained in a file at the Secretary of State’s office. “The agreements relate to personnel disputes often involving employee discipline including termination.”
In an appeal filed with Secretary of State William Galvin’s office, Wallack seeks unredacted versions of the documents, noting the settlements involved millions of taxpayer dollars. In one case, according to Wallack, an employee was awarded more than $300,000. "I can’t imagine the courts intended to give the state a loophole to hide deals involving millions of dollars in taxpayer funds," Wallack writes in his appeal.
Mike Beaudet, an investigative reporter for Channel 25, the local Fox outlet, asked the Massachusetts Film Office in August 2009 for records related to in- and out-of state travel by its employees and board members as well as their non-travel expenses, all since July 1, 2008. The film office denied Beaudet's request, arguing that it is not a government entity and is thus not subject to the Massachusetts Public Records Law. Beaudet appealed.
Court decisions in Massachusetts have established a five-factor test that can be used for determining whether an organization is actually a government entity and thus covered by the Public Records Law: the means by which the entity was created, whether the entity performs an essentially governmental function, whether the entity receives or expends the public funds, the involvement of private interests, and the extent of control and supervision exercised by governmental officials, agencies or authorities. These factors are cumulative, with no one factor being weighed more than another.
After applying this five-factor test, Cote ruled last February that the Massachusetts Film Office "is not a public instrumentality for the purposes of the Public Records Law," and is thus not covered by the Public Records Law. He noted that there is no statute, regulation, or executive order that establishes the film office, and so it is not a public entity.
Link:
http://www.commonwealthmagazine.org/News-and-Features/Online-exclusives/2011/Winter/Sifting-through-records-appeals.aspx