The Romney administration’s decision to erase most electronic files is neither illegal nor unusual. According to state records officials, past governors such as Weld, Cellucci and Swift have not made their electronic records available to the state archive or to the incoming administration, according to state staff. They have submitted some computer print-outs to the state archive, but Romney did that, as well.

PolitiFact is no fan of Romney. Page through its “Pants on Fire” section — that is, statements deemed to be outrageous lies — and you’ll find that Mitt is well-represented. But it seemed pretty clear from the beginning that criticizing Romney’s staff for not turning over non-public electronic records was ridiculous. And so it was.

As you may know, the Boston Globe reported yesterday that former Massachusetts governor Mitt Romney’s office let staffers buy their computer hard drives on their way out the door, and servers were scrubbed clean, meaning there are no email records from Romney’s time in office.

Anyway, here’s what I’d like answered:

• The Globe reports that the emails are not public records, and would not be subject to a public-records request. Yet Secretary of State Bill Galvin says the emails nevertheless should have been turned over to him for filing in the state archives. Are there any circumstances under which the records could be made public? If not, isn’t this a story about nothing?
• Why wasn’t this an issue in 2008, the first time Romney ran for president? Romney wasn’t some back-of-the-pack lightweight that year. He was the most credible alternative to John McCain. Did no one ask for this stuff back then?
• Doesn’t Romney’s campaign have a point when it claims that the revelation may be a politically motivated attack by Gov. Deval Patrick? After all, it comes during the same week that Patrick slimed former attorney general Scott Harshbarger, the most prominent opponent of his cherished casino plan.

During the weekend, more than 20 of the state’s daily newspapers, with support from the American Civil Liberties Union, Common Cause, the New England First Amendment Coalition at Northeastern University, the Massachusetts Newspaper Publishers Association and New England Newspaper & Press Association, published this editorial endorsing legislation to increase government transparency. A list of those newspapers can be found here. Media Nation is proud to lend its support.

The walls Beacon Hill has erected between itself and those it governs have taken on two dramatically different faces.

Outside, they show decades’ of wear at the hands of those fighting for better access to their government. Inside, they’re increasingly pocked with a taint that thrives in the absence of light.

That taint, most recently seen in a disturbing chain of high-profile corruption cases, suggests any benefits such barriers provide to the efficiency of lawmaking are grievously undermined by the efficiencies they also provide to those more interested in lawbreaking.

The felony convictions of three successive House speakers – and a Probation Department scandal that threatens to reach into every corner of public service – clearly indicate state transparency laws are in dire need of improvement.

Central to that effort is eliminating exemptions that free the governor’s office, Legislature and judiciary from having to live by the meeting and records laws that apply to every other public office in this state. Just as important is making it easier and more affordable for people to take advantage of the access already protected by a law that predates e-mail and the Internet.

It’s an area where minor advances have been made but substantive reform has been routinely killed or ignored.

Given recent scandals and polls showing a deep and growing distrust in government, we hope this year is different.

That notion will soon be tested on several fronts as lawmakers consider a number of initiatives.

One bill seeks to reduce the cost of obtaining records, requiring state agencies to make commonly sought public documents available electronically. It would also cut administrative costs and processing time associated with such records requests.

Another would strengthen the enforcement and investigatory powers of the Supervisor of Public Records.

A third would assess penalties against lawmakers who purposely skirt access laws and would cover the legal fees of those who successfully challenge them. And several seek to breach that battered and stained wall around Beacon Hill, subjecting the Legislature to the state’s Open Meeting Law.

Critics of the measures have focused on the financial and manpower burdens they impose on records keepers. Yet this push for more easily accessible records, already successfully implemented in other states, holds the promise of reducing those burdens.

House Speaker Robert DeLeo, following the June conviction of his predecessor, Salvatore DiMasi, vowed to regain voters’ faith in state government.

“Today’s news delivers a powerful blow to the public’s trust in government,” he wrote then. “One of the things that I find most disturbing – and the thing I am most committed to changing – is the public’s view of politicians and public sector employees.”

Fewer walls – legal, financial and technological – would go a long way toward that goal.

Photo (cc) by Andy Connolly via Wikimedia Commons.

William Cronon

As a journalist, my inclination is to support public-records laws that guarantee maximum disclosure. As an ordinary citizen, it’s sometimes unclear to me exactly how far those laws ought to go.

You may have heard that Wisconsin Republicans have filed a Freedom of Information Act request to obtain private emails written by or to a history professor named William Cronon, whose blog has become a focal point in the battle over the rights of public-employee unions in that state.

Cronon may have to comply because he teaches at the University of Wisconsin in Madison, a state university and thus subject to Wisconsin’s strict public-records laws.

One strong argument against disclosure — and one invoked by Cronon himself — is the principle of academic freedom. That may well be how Cronon beats this, yet it strikes me as an easy way out. Why should a professor be exempt while, say, a $50,000-a-year career employee in the highway department is subject to having his private emails revealed in response to a FOIA request?

I should note that this does not affect me personally. Northeastern is a private university. But I don’t see why I should be safe from the long arm of FOIA while my colleagues at UMass are not.

Like Paul Krugman, I make some attempt to use my work email address for professional business and my personal address for everything else. But it’s mainly for my organizational benefit, and I’m not all that painstaking about keeping the two accounts separate.

I’m not sure what the answer is. It seems to me that some officials higher up the food chain ought to be subject to FOIA laws, but that ordinary employees should not. Of course, such officials’ correspondence with ordinary employees would be covered. But I shouldn’t be able to FOIA the email of anyone just because he or she happens to draw a government paycheck.

Michael Morisy

Last night I met a fledgling First Amendment hero: Michael Morisy, co-founder of MuckRock, a site where he posts public documents he obtains from filing public-records requests.

Morisy, as you might have heard, may be in trouble because of how Gov. Deval Patrick’s administration handled his request for records about how much money has been spent at various Massachusetts businesses under the federal food-stamp program.

The state complied with Morisy’s request. Then, in a classic CYA move, the administration — realizing after the fact that the release may have violated federal law — sent a letter to Morisy informing him he could be subject to a possible fine or imprisonment if he doesn’t take the information down. It was a ridiculous threat, and Morisy has refused to comply. The courts have consistently ruled that, under the First Amendment, the onus for keeping private records private is entirely on the keeper of those records, not on those who would publish them.

Nor is the privacy of any food-stamp recipients at risk. The records published by MuckRock, according to this Boston Globe story by Noah Bierman, do not identify any recipients.

It doesn’t seem likely that Morisy and his tech guy, Mitchell Kotler, are in any real trouble. In a follow-up in the Globe by Jonathan Saltzman, we learn that the Patrick administration issued a second CYA to cover its first CYA, assuring one and all that it never, ever intended to threaten MuckRock. Oh, no, of course not.

“At this point, I think the legal issue will blow over,” Morisy tells Chris Faraone of the Boston Phoenix. “But it’s still interesting, because all of a sudden people got very interested in what we’re doing.”

Still, you never know. Last night Morisy attended a panel discussion I moderated at Boston University on “Legal Liability in the Age of WikiLeaks,” with local First Amendment lawyers Jon Albano and Rob Bertsche. Bertsche, who has agreed to represent Morisy for free, made it clear that he doesn’t consider MuckRock to be out of the woods just yet.

Given the public attention this issue has received, I think Gov. Deval Patrick himself should announce that Morisy and Kotler are in no danger for posting records they received as a result of making a legitimate public-records request. Patrick should apologize while he’s at it.

Photo is from Morisy’s LinkedIn profile.

State officials have ruled that it’s all right for the Cambridge Police Department to charge the Cambridge Chronicle $1,215 for nearly a month’s worth of public records. The Chronicle had sought descriptions of criminal suspects, the addresses of those who had been arrested and the addresses to which police responded between July 1 and 27.

“Given that a large number of documents, which may contain sensitive information about the identities of the victims and witnesses, are required to be properly viewed, I consider this to be a reasonable fee estimate provided by the department,” the Chronicle quotes Alan Cote, the records supervisor for the secretary of state’s office, as saying.

Trouble is, the Chronicle contends that, before June, the police had routinely been making most of that information available. Even though the state has now found that the police are not doing anything illegal by withholding certain types of information from its daily public reports, the police department is nevertheless moving in a direction of less openness — not a good thing for any law-enforcement agency, let alone one that is in the midst of an investigation stemming from the arrest of Harvard scholar Henry Louis Gates.

As I wrote when this first came up in August, the fees being imposed by the police department are an outrageous breach of the public’s right to know. And it’s not being done in isolation. Last month the Boston Globe reported on public officials who are using high fees to discourage bloggers and financially struggling news organizations from obtaining public records.

It’s time for elected officials who believe in governmental openness to rethink the practice of charging high fees for information that, by right, ought to be freely available to the public.

Like all Massachusetts police departments, Cambridge’s makes a bare-bones incident log freely available to members of the public; it is, in fact, online. But state law exempts police departments from having to release detailed information about incidents that are under investigation.

What is and isn’t public information, and when it must be made public, are complicated matters that I’m not going to get into here. But the law does require that the public log — also known as the police blotter — contain the “names and addresses of persons arrested and charges against such persons.”

According to the Chronicle, though:

The Cambridge Police Department already keeps a daily police log online maintained by a student intern, but over the past several months, the Chronicle noticed that previously available information — such as the ages and addresses of arrested people, the addresses where crimes occurred and the description of suspects — was being withheld from the public.

In quickly scanning through a few days’ worth of the Cambridge log, I found several examples of arrestees whose addresses (and ages) were listed. I couldn’t find any whose address was not listed. I have no reason to doubt the Chronicle’s reporting, but it’s important to point that out.

The fees are another matter. Charging $1,215 for public records is an outrageous breach of the public’s right to know. The police department’s lawyer, Kelly Downes, cites the cost of compiling and copying those records. But the standard practice with many police departments is to allow reporters to view the originals at the police station, at no cost to anyone.

Given the embarrassment over the department’s recent arrest of Harvard scholar Henry Louis Gates in his own home, you’d think that everyone would be on his or her best behavior these days. Well, think again.

And by the way — we’re still waiting to hear how Sgt. James Crowley, who arrested Gates, managed to incorporate information into his report from a woman who insists she never talked with Crowley. Maybe Downes hasn’t had a chance to work out a price for that particular piece of information.

David Kurtz has a withering take on the news at Talking Points Memo: “Cheney Obama refuses to release visitor logs showing which energy health care company executives visited the White House.”

OK, we get it that we’re not suffering through Barack Obama’s economy or his war in Iraq — at least not yet. But governmental openness is not only something the president promised, but it’s also under his direct control. Enough already.

Specifically, I’m startled by the notion put forth by some that Gates was in the wrong by not showing extreme deference toward the police. If you put race aside for a moment (but only for a moment), I think that, more than anything, accounts for the split. We’re talking about a clash of worldviews that we’re not going to resolve here.

I’ve been sitting on the fence but leaning toward Gates. I now think we know enough that I can come out firmly on Gates’ side. We may never know exactly what happened. But the only important difference between the police report and Gates’ own account is the question of whether Gates pulled a nutty. I don’t care if he did or not.

I’m going link-free; I’ve linked to everything relevant over the past few days, so just click here.

Here are some facts that we know beyond any doubt:

• A woman who works but does not live in the neighborhood called police to report that two black men appeared to be breaking into a home. Perhaps she would have called even if Gates and his driver had been white. I don’t know what she was thinking. But if their race played a role in her decision to dial “911,” that would hardly be the first time police have been summoned because black people had been seen in a place they weren’t supposed to be.

• The police responded and questioned Gates, as they should have, given the woman’s call and her report that the two men were trying to force their way in.

• A short time later, Sgt. James Crowley and his fellow officers knew for a fact that Gates, in fact, lived in the home to which they had responded. Gates — 58 years old and disabled — may or may not have been ranting and raving at them. But surely the officers knew that, through no fault of their own, they had stumbled into a racially explosive situation.

• Rather than find a way to extricate themselves and let everyone cool off, the police decided to arrest Gates at his own home and charge him with disturbing the peace. Even if you rely solely on the police report, it’s clear that Gates’ offense was mouthing off to the officers, who were on his property and who no longer had any reason to be there.

• The arrest took place last Thursday. No one knew about it until Monday, when the police report leaked out. (It appears that the Boston Globe broke the story.) Even though the report was a public record that the police were withholding on flimsy grounds (The investigation was continuing? Really?), a police spokesman said as recently as yesterday that the department was trying to ferret out the leaker.

• As soon as Middlesex District Attorney Gerard Leone got involved, the charges were dropped and the Cambridge Police Department issued a conciliatory statement. It is telling, I think, that it took an outsider to see the arrest for the fiasco it was.

Am I missing anything? I don’t think so. I also don’t think anyone can dispute the facts as I’ve laid them out. Given that, we come back to our competing mindsets.

Could Gates have handled this differently? Well, sure. He could — as many have suggested — have thanked the officers for keeping such a close eye on his house and sent them on their way with a smile and a handshake. Maybe that would have even been a better response.

And you know what? It’s definitely how I would have responded. But I’m white, and that fact predisposes me to have a very different attitude toward police officers. At a minimum, I would never suspect I was being hassled because I didn’t look like I belonged in my own home or in a particular neighborhood.

Gates responded as someone whose dignity had been assaulted because of his race. And whether that was literally true or not, the officers should have understood immediately that that was a perfectly understandable, reasonable response on Gates’ part.

Either the police didn’t recognize the situation for what it was, or they did and made a macho decision to show Gates who was in charge. Either way, it was a mistake, and one we’ll be hearing about for some time to come.