The Massachusetts public records law fails three out of three times

Last month we reported that we’re seeking records related to the deportation of a Boston Public Schools student. The deportation was notable because an incident report written by an East Boston High School resource officer was used against the student in a deportation hearing, raising questions about how the schools, police, and ICE were sharing information.

In the wake of that scandal, I requested all communications between ICE and BPS, the Boston Police Department-run Boston Regional Intelligence Center (BRIC), and the Massachusetts State Police-run Commonwealth Fusion Center.

To date, none of the three agencies have provided an actual response to my requests made on June 26.

After an update to the state’s records law was put in place in 2016, I predicted that the new law’s timeline would allow agencies to spend months stalling and enable them to violate the protocol without consequences. That’s what’s happening with all three agencies in this case, with each one putting their own unique spin on how to circumvent the rules.

BPS simply didn’t bother to respond. BPD is defying an order from the state to respond. The state police response stands out—an MSP attorney wrote that I would need to waive the legal window they had to respond to my request, or else they’d just claim that the records don’t exist. They then conceded that their new IT system makes it technically impossible for them to meet the deadline for responding to records requests.

STRIKE ONE

In late June, I put in a request to the MSP looking for communications, related to immigration, between them and ICE, local schools, and resource officers. On July 11, the day when its full response was due, MSP attorney Alycia DeAngelis replied for the first time, requesting that I narrow the date range for my inquiry. Five minutes later, I did so, after which the scandal-prone MSP, already recognized as one of the least transparent government agencies in the country, employed a hitherto unheard-of tactic: Their lawyer refused to conduct a search for the records I requested unless I agreed to extend her time to respond by a week.

The Mass public records law is unambiguous—a full response is due in 10 business days. As such, I declined, writing, “I’m not going to agree to an extension. Your office has had my request for weeks and is only seeking clarification on the day it’s due. I’m sorry that your office failed to address this in a timely manner.”

It is the MSP’s legal responsibility to respond, which makes its failure to do so a crime. Furthermore, the fact that DeAngelis waited until the day the response was due to ask for me to narrow my request suggests that the MSP didn’t begin to fill the request until the last day possible. The law tasks records access officers with providing access to records “without unreasonable delay,” so waiting until the very last day possible to even try to fill a request is a potential violation in and of itself.

                Attorney DeAngelis

The MSP’s response was the most gangsterish legal dodge I have seen in years of seeking public records. DeAngelis first claimed, “Your request was vague,” but in the following sentence admitted that she already conducted a cursory search based on the info provided. She went on to note that she had prepared to have a full search done, but doing so would require the agency “to outsource … because the Department’s internal IT office no longer performs this function.” This outsourcing, DeAngelis claims, would take more than the 10 business days allowable by law—an admission by an MSP attorney that they have a new system in place that may prevent them from complying with the public records law.

The email from DeAngelis continued: “If you do not want the Department to move forward processing your request, please let me know and I will discontinue efforts to locate the information you request with these additional parameters appears to be looking for.” This was an attempt to shift the blame for the delay onto “additional parameters,” which is laughable because the only new information she had was a narrower timeframe. It actually should have been much easier to search.

In the end, I did not agree to allow the MSP to ignore the deadline set by the records law. I also did not ask DeAngelis to discontinue the search. After waiting nearly a month and getting no further response, on Aug 9 I filed an appeal to the supervisor of records in the secretary of the Commonwealth’s office.

STRIKE TWO

The best part of the awful records law is that it punishes agencies that fail to respond in a timely manner by not allowing them to assess fees. The BPD is evading the law by returning correspondence that does not meet any of the legal standards—for one, the department sent what appears to be a form letter claiming it would eventually respond and assess fees at that time. Meanwhile, under the public records law, agencies are not allowed to assess their own fees after 10 business days.

A day after sending that form letter, the BPD emailed me again saying it needed clarification about my request and instructed me to call to discuss it. This is improper—the department knew that it was violating the law and would be facing appeal (I have appealed its non-responses in the past) and knew a phone discussion couldn’t be included in my appeal, since there wouldn’t be a record of it. I declined and asked to address the issue on email, to which the department replied, “The request you have submitted is too broad and non-specific, the Boston Police Department will require further clarification in order to process this request.”

I have repeatedly asked what information it is looking for, and the department has not responded. I put in an appeal to the supervisor of records, whose job it is to oversee the state’s transparency law, seeking an order for the BPD to respond. I also requested that the office address the issue of police asking requesters to call them, as well as the form letter that the department used to claim it would attempt to illegally assess fees.

The supervisor’s office, run by Secretary of the Commonwealth Bill Galvin, ignored everything but the underlying nonresponse issue, simply ruling that the BPD had 10 more business days to respond. As far as precedents go, its failure to rule on the use of a form letter-like template by default allows BPD attorneys to continue drawing out the process, while its refusal to order the BPD to waive fees sets the stage for unlawful attempts to assess cost. In this case, the state further delayed a request that was already almost two months old.

If the BPD does attempt to assess a fee, I will have to appeal yet again, which means the supervisor will rule on the issue, presenting an opportunity to undermine the only significant upgrade made to the law in the 2016 update. In the meantime, the BPD appears to have lied; in the order, the supervisor noted: “A representative from the Department indicated that while this appeal was pending, the Department and Ms. Shaffer have had further communications regarding this request.” This is false. I repeatedly asked BPD what information it was seeking, and it never responded. At no time since my appeal has anyone from the department contacted me.

The BPD was given 10 more business days to provide a response. Last Friday was day 10. Since it’s now in open violation of the supervisor’s order, I requested that the order be enforced, but that is unlikely to happen. In their history of working together, Mass Attorney General Maura Healey and Secretary Galvin have not once enforced the public records law, which in the BPD’s case here could be punishable by fines and up to a year of incarceration.

STRIKE THREE

In Massachusetts, the records law is routinely ignored because it is completely unenforced—so there’s zero penalty for agencies that either actively choose not to comply or simply don’t care enough to respond to requests. Take BPS, which doesn’t even have its records access officer’s contact information on their website as required by law.

I asked BPS for any communications regarding immigration between it and any type of law enforcement. My request eventually drew an email in which the BPS asked me to narrow the timeframe for the records I sought. I did so, but it neglected to respond any further. The matter is now under appeal.

These three failures are all symptoms of the ongoing collapse of public records access in Mass. The problem doesn’t seem to be a concern for Secretary Galvin or Attorney General Healey, and legislators have already failed in their attempt to competently update the law.

The failure of the records law is critical because right now, it’s allowing governmental agencies to assist ICE under the table and beyond public scrutiny. Boston is a so-called sanctuary city; nevertheless, information is being passed to ICE. We need proper access and transparency to determine how this is all happening.

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