The Massachusetts Attorney General has declined to issue an advisory opinion requested by the Pioneer Institute, a Boston based think tank, regarding the Massachusetts Legislature’s exemption from the Commonwealth’s open meetings law. The Mass. AG has concluded that it is not authorized by the open meetings law to issue such an opinion and that it is in fact forbidden from doing so by precedent from both the Massachusetts Supreme Judicial Court and the U.S. Supreme Court.
The Massachusetts Legislature passed the open meeting Law in 1975. The law requires any meeting of a “public body” to be open to the public and imposes a 48 hour advance notice period except in the case of an emergency. The legislature, its committees and recess commissions (among others) are expressly excluded from the definition of “public body” under the statute.
The Pioneer Institute has asserted that the legislature is the “ultimate public body” and that its “self-exemption” from the open meeting law is irreconcilable with the Massachusetts Constitution. In its request to the Attorney General’s office, the Institute argued that the legislative exemption violates the constitutional mandate that the legislature be “at all times accountable” to the people and that—by shielding information that is part of the deliberative process—it undercuts the right of Massachusetts citizens to “give instructions to their representatives.” The Institute asserts that the scheme is essentially an inequitable—and therefore unconstitutional—mode of lawmaking.
The Mass. AG provided two bases for declining to provide an advisory opinion. First, as interpreted by the Attorney General, the open meeting law regulations only authorize an advisory opinion about “operation and implementation” of the law, not its constitutionality. Second, even if the regulations purported to authorize such an opinion, the Supreme Judicial Court and the U.S. Supreme Court have ruled that “administrative agencies do not have the power to declare unconstitutional the statutes that created them.” Because the Attorney General derives her authority to enforce open meeting requirements from the statute itself, the Attorney General reasons that her office is, in effect, an administrative agency created by the law. She therefore cannot opine about the statute’s constitutionality.
The Pioneer Institute has asked the Attorney General to reconsider her response. To date, she has not. The Institute has not indicated whether it will pursue a legal challenge to the self-exemption.