The second largest city in Mass and state officials won't adhere to basic public records laws
BY MAYA SHAFFER
Across Massachusetts, today is actually tomorrow.
Except in Worcester, where it’s already the day after tomorrow. But if that would make it the weekend, then it’s the following Monday instead, and that is barring any holidays … unless, of course, you hand-deliver a request for public records, in which case today might be today if the law is enforced. Don’t hold your breath on that one.
This nonsense is par for the course thanks to what is by some measures the worst public access records law in the US. To make matters much worse, the law is overseen by Secretary of the Commonwealth William Galvin, whose office frequently finds new and creative ways to erode access to public records.
In a recent ruling on an appeal of Worcester’s response to a request for records about the surveillance of striking nurses at Saint Vincent Hospital submitted by my site Crit.news, Galvin’s office allowed Worcester an extra business day beyond the statutory 10-day span to respond, which is already 11 business days in practice since Galvin determined that a records request is technically received the business day after the agency receives it. By signing off on (or refusing to address) the actions of the City of Worcester, Galvin and his office allowed an unlawful extension. His office also coddled a municipality that, like many others, funnels all requests into a problematic system that appears designed to deter and stall records requests.
Crit.news made two identical requests: one to the City of Worcester, and another to the Town of Leicester. Worcester is the second-largest city in New England and should be used to processing records requests, whereas Leicester is much smaller and probably less used to dealing with them.
In Leicester, the town’s Records Access Officer (RAO) Debbie Davis received my request on Aug. 2 and responded that day, saying she had conducted the search of all departments except the police which would be done shortly. We replied, “Thanks,” and the police department subsequently responded fully on Aug. 4 notifying us that a complete search of all departments found no responsive records. It was a simple request that took two days to fulfill and was handled transparently. Meanwhile, in nearby Worcester …
The Worcester RAO, Michael Vigneux, began by attempting to make us resubmit our request through a platform on the city’s website—despite state law clearly requiring RAOs to take requests via email. Given pushback, Vigneux relented, but said he would enter the information into that same system anyway. We said that was fine as long as he provided a proper timely response via email.
On Aug. 17, 12 business days after our request was made, Vigneux sent an email stating, “The city requires additional time, up to 15 business days as provided by statute, to complete the work necessary to fulfill this request. If any records become available sooner, they will be provided.”
While the Massachusetts public records law allows for municipalities to give themselves an extension to provide records, this extension only exists to provide records and does not change the 10 business day window for a response.
When we pointed out the violation of the 10 business days (which is actually 11 business days, thanks again Galvin) limit, Vigneux replied that the email informing us of their unlawful extension was their timely response. We pushed the issue further by breaking down how Aug. 17 was 12 business days, and thus out of compliance with the law. Vigneux then dropped our jaws with this bomb: “Your request was submitted at 5:14 p.m. on August 2. Anything submitted after 5 p.m. on a weekday is classified as being received on the next business day which was August 3. Therefore, 10 business days from August 3 is August 17.”
The Worcester RAO further explained, “When a request is received on August 3, that is the date of receipt. After 5 p.m. on August 2 counts as August 3 as the day of receipt. Therefore, business day one is August 4. Therefore, the 10 days are up at the end of the business day on August 17.”
This is blatantly unlawful, and to make it even more flagrant, our request was not made after hours. In fact it was made at 0756. The 1714 time cited by Vigneux is likely when he entered my request into his system, but he was clearly aware of our request hours earlier given that he tried to illegally pressure us into using his online system at 1056 on Aug. 2.
On Sep. 8, more than a month after our request, we got an automated message from Vigneux’s system saying our records were uploaded. We reached back out to Vigneux, “I just got an email saying the records have been uploaded somewhere. Can I have a copy of the records I requested?” Vigneux replied, “They are all in the portal if you login.”
We had to write back to remind him, “I don’t have a profile. You made one in my name I think, but I don’t have one. Given that the profile you created is yours and not mine (and I don’t know how to log in to it) please send me the records.”
Finally, after all of those unlawful and stupid antics, he sent us some records. While none of the records we received contained particularly incendiary information, the emails between the police and Saint Vincent Hospital show a cozy relationship between administrators and cops. One exchange also has hospital security asking the police to keep officers away from picketers because of “Bad optics.” The Worcester police agreed.
Nowhere to turn
Under the Massachusetts public records law, requestors are supposed to be able to get help correcting unlawful behavior by appealing to Secretary Galvin’s office. His office is then supposed to make rulings based on the law and regulations on every appeal, and those orders are supposed to be enforced by the attorney general’s office.
Except this is Massachusetts, so none of that is likely to happen. Here, most records appeals are effectively killed by Galvin’s office, which takes up to 10 business days to rule (and when they do, they often go out of their way to be unhelpful). Even if you do win, Galvin’s orders usually allow RAOs to take another 10 business days to respond.
One of Galvin’s best weapons to stop journalists and citizens from obtaining public records is to simply not rule on appeals, or to rule narrowly on a single part of an appeal and leave the bulk of the appeal unaddressed. His office does this by closing appeals without rulings, a violation of the statute, if an agency responds during the appeal.
Given the multitude of obvious ways Vigneux violated the law, we appealed based on four separate issues. We specifically broke out each issue in our appeal and asked for ruling on each:
Issue 1: The Worcester RAO, Vigneux, attempted to decline to take our request via email and attempted to force us to resubmit in their internal system. Later he set up an account on that system in Crit.news founder Maya Shaffer’s name, and processed the request through the system ultimately pretending that uploading the records into his account in Shaffer’s name meant we received the records. We asked Galvin’s office to rule that Vigneux must accept requests through email without telling requesters to resubmit requests elsewhere, given that it creates an unlawful roadblock to records access, and to please clarify that providing records to an internal account owned by the RAO (even if they put our founder’s name on it) does not meet the standard for providing records to requestors. Galvin’s office did not rule on this or address it in any way in their ruling on our appeal. This refusal to correct the problematic behavior of the law paves the way for RAOs to bully requestors into using systems that make it harder to access records and harder to appeal. It further emboldens bad actors like Vigneux.
Issue 2: Vigneux granted Worcester an unlawful extra day to reply to requests. He has claimed that a request that comes in after hours counts as received two business days later. Galvin’s own regulations on the law are clear that it would be considered received on the next business day. I requested that they issue a ruling clarifying this to the RAO, as this matter is likely to come up again in the future and could widely impact requests made to the city. We turned over our records showing the request didn’t even come in after hours. In turn, Galvin’s office did not rule on this or address it in any way in their ruling on the appeal, and by failing to address this issue, they are refusing to enforce even the most basic timeline of the law.
Issue 3: Vigneux granted Worcester an extension to respond unlawfully. Vigneux’s correspondence informing us that he granted himself an extension came without the required detailed response. While an extension to provide records exists under the law, it still requires that a full and detailed response is due on business day 10. We requested that Galvin’s office rule explicitly that extensions are for providing records not for providing responses. Galvin’s office did not rule on this or address it in any way in their ruling on the appeal. Meanwhile, RAOs granting themselves unlawful extensions is a persistent problem we have faced, and RAOs across the state appear to believe that they can do this. We have repeatedly asked for a ruling on this specific issue and Galvin’s office has never given one allowing RAOs to quietly continue this completely unlawful practice.
Issue 4: The City of Worcester never provided a proper response to my request. They eventually turned over some records and cited some exemptions broadly, but we were never given a detailed response clarifying what records exist, if any records are being withheld entirely, nor were we told how each exemption applies to each record with specificity. We requested that Galvin’s office order Vigneux to provide such a response.
The records law is very specific about what a response must include, while the law requires RAOs to “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based, provided that nothing in the written response shall limit an agency’s or municipality's ability to redact or withhold information in accordance with state or federal law,” and to “identify any public records, categories of records, or portions of records that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought.”
Vigneux never provided a list of responsive records. He turned over emails but did not specify if there were any emails that were withheld entirely. He cited some exemptions broadly but never specified how they applied to each record as required by law.
Despite the clarity of the law on this matter and the fact that the other three issues were unaddressed, Galvin’s office laughably ruled that Worcester had met its burden. The secretary of state wrote, “Based on the September 8th response, the Department has met its burden in responding to this request for records. Accordingly, I will consider this administrative appeal closed.”
Massachusetts continues to drift into the dark. Our public records are increasingly unreachable and timely access does not exist in this state. Ignoring the basis of appeals and ignoring the law are only two of the many tactics employed by Galvin’s office to make a joke out of records access in this state. This lack of enforcement allows bad practices to continue and bad actors to operate in bad faith to the detriment of the public. This is one of innumerable examples.
This article is written in collaboration with Crit.news and DigBoston and is syndicated by the MassWire news service of the Boston Institute for Nonprofit Journalism. If you want to see more reporting like this, make a contribution at givetobinj.org. Donations will be matched by a national funder through November and December.
