THE UGLY TRUTH ABOUT PUBLIC RECORDS ACCESS UNDER NEW MASS LAW
The updated Massachusetts public records law is worse than I predicted, and I basically predicted doom.
I’ve recently run into back-to-back critical failures that threaten the ability of requesters, be they media or private citizens, to even obtain records at all, let alone obtain them in a timely manner. The Massachusetts Department of Correction has claimed it doesn’t have to produce the quarterly reports called for under a DOC policy because it hired a contractor to create and keep the records. In a separate matter, the supervisor of records who oversees the records law is closing appeals without making written determinations on them.
Last March I warned, “The old law did not allow agencies to contract out to vendors to store records, but the new law does, raising the potential that a nongovernmental entity could hamper access to records.” As far back as last June, I highlighted that the update to the records law allowed agencies to use third-party vendors to store and handle records. The problem with vendors is that they are not governed by the public records law at all, and there is no direct way to compel them to produce records. None of the laws relating to the timeframe or cost to produce records apply to them.
By policy, the DOC generates a quarterly report related to inmates suffering gender dysphoria. I requested these reports as part of my ongoing coverage of the department’s housing of transgender inmates in facilities that do not match their gender identities. A DOC spokesperson responded, claiming, “Quarterly reports required by policy 652.07 are generated and maintained by the MA Partnership for Correctional Healthcare (MPCH), the contracted healthcare vendor. Your request for these reports will have to be filed with them directly.”
I have appealed this response to the supervisor of records, an appointee of Secretary of the Commonwealth William Galvin. Under the records law, theoretically, a records custodian should be able to compel anyone holding a public record belonging to the agency to produce that record, but the updated records law does not address whether this applies to contractors hired by agencies. The supervisor’s ruling will be an important one because it could set a precedent that contractors and vendors do not need to produce records, which would resultingly allow agencies to completely shield themselves from the already meager transparency laws of Mass.
The second and almost equally important roadblock I hit was with the supervisor of records office itself. I am looking into how complaints against three high-ranking officers in the Shirley Police Department were handled after an external investigation found that the three of them had engaged in harassing and unprofessional behavior toward a female officer. I requested all citizen complaints and related IA files for the three officers for the years when they were reportedly harassing their coworker.
In either a fit of incompetence or in a calculated move to maximize the time it takes for me to get the records, Shirley responded late, sending several scattered batches of records with little explanation regarding the contents. In a response to a records request, the agency must specify what records sought in the request are responsive, if any records sought do not exist, and if any of the records that do exist are being withheld. The response from Shirley did not contain this information.
Shirley provided some of the records I requested, with redactions and no proper response, and pledged to follow up with a full response. After officials failed to respond within the 10-business-day limit, I filed an appeal. The next day, they sent more records and a response that lacked the details required by the records law.
I asked that my appeal be updated to deal with the problematic response, and the day after I updated the appeal, an attorney acting on behalf of Shirley sent me a letter that provided no new insight into its response. That same day, the supervisor of records office closed my appeal, citing the letter from the town’s lawyer.
The practice of closing appeals without written determinations by the supervisor’s office appears to violate Section 10a of the public records law: “The supervisor of records shall issue a written determination regarding any petition submitted in accordance with this section not later than 10 business days following receipt of the petition by the supervisor of records.” I wrote back to the supervisor’s office and instructed it to never close one of my appeals again, and asked it to reinstate my appeal. Unfortunately, I received a letter saying that instead of reopening the appeal it had opened a new appeal, which reset the 10-business-day clock that the supervisor’s office has to issue a written determination. The supervisor’s office did not say it would stop unlawfully closing appeals.
Last March, I warned that those touting the update’s enforceable timeline were talking out of their asses: “Here’s the gut-punch: As of now, Galvin’s office and Attorney General Maura Healey’s office allow agencies to simply offer new exemptions at the end of the process. A requester can appeal again, but each time around, the cycle adds about another month. We need to put to bed the fiction peddled by the ACLU and Common Cause that the length of time an agency or municipality has to provide records is capped under the update.”
I predicted an eternal loop of never-ending unenforced appeals… but at least I thought the new law would mean we could report on rulings being made. I predicted that vendors would cause issues… but I didn’t quite predict they would be used to provide a flat rejection for all records held. Our state access law was pathetic before the update made it worse, and now there is no functional public records system in Massachusetts.
This article was written in collaboration with the Boston Institute for Nonprofit Journalism.