Boston News Today - BROKEN RECORDS: CAPELESS, AND USELESS

Enforcement of the Massachusetts public records law will never happen under Galvin and Healey

After more than a year of investigating the destruction of evidence in criminal cases in Berkshire County, we have definitively proven that Massachusetts Attorney General Maura Healey and Secretary of the Commonwealth William Galvin will not enforce our state’s public records law. So anyone in government can simply ignore public records requests and bury records they don’t want to be seen.

In April, we broke the news that the Pittsfield police had suffered a hard drive crash and lost an undetermined number of booking videos. Since then, the police and Berkshire District Attorney David Capeless have tried to minimize the crash’s importance while claiming they did nothing inappropriate. But the entire time, Capeless’s office has been trying to keep information about the loss from the public, and has violated the law in several ways in the process.

We found out about the hard drive crash after the Pittsfield police took our money for a booking video of Phyllis Stankiewicz, a wrongfully arrested 88-year-old woman. But after taking our money, the department didn’t provide the video. They dodged our calls for a while until we publicly shamed them, and they finally sent a terse email saying the video was not available due to a hard drive failure.

After we learned of the hard drive crash, we sent the DA’s office a records request for notifications made to defense attorneys. Capeless’s office responded that there were none. But after we published a story about the lost evidence, Capeless told other journalists about an OUI case that had been affected by the lost evidence, and said his office notified defense attorneys whenever it became aware of a missing video (though his office made no proactive attempt to discover which cases had missing evidence).

In the affected OUI case, a judge ruled that the loss of evidence was not malicious but that the loss could be mentioned by the defense at trial to attempt to create reasonable doubt. In that ruling, we found out the Pittsfield police had sent the hard drive out for recovery after telling us, and the defense attorney whose case was affected, that the videos were lost. We asked for the Stankiewicz video again to see if it had been recovered, and this time it was provided to us. We also asked the DA’s office again for records that would either verify or prove false Capeless’s claims about how his office handled the loss of evidence.

After delaying their response to our latest request until we filed an appeal, Capeless’s office ultimately told us they would not even provide a fee estimate unless we first agreed to pay an unspecified amount of money “expecting to exceed $500.00.”

It is the lawful duty of all government agencies to provide a response, including a detailed fee estimate, to any request within 10 days of receipt. We have only encountered this fee to assess a fee nonsense once before (we won our appeal of it), and it helped the Massachusetts State Police win a Golden Padlock “Award” from the group Investigators Reporters & Editors, a distinction reserved for the most secretive government agencies in the country.

We reached out to Capeless about this, but he took no corrective action. We appealed again, and the state supervisor of records ordered Capeless to provide a response without delay. But he did not—that order is now over a month old, and we still have no response. His office did, however, send us a letter claiming that it hasn’t been able to write a response yet because it must locate and hand-search “several thousand case files” and “possibly additional files.” If true, it’s amazing that the DA’s office gets anything done since it must have such a disorganized records system that it makes finding casefiles nearly impossible. Or they are lying. Again.

In any case, the order was not followed. So we reached out to the AGO for enforcement (since they are the ones who can actually have the law enforced). The case is a simple slam dunk. We even have an order from Galvin’s office to back our claims up. We emailed Assistant Attorney General Lorraine Tarrow and copied Supervisor of Records Shawn Williams so that he could confirm the order had not been complied with.

In response, Tarrow said that the AGO would not assist us unless they received a referral from the supervisor of records. We tried asking Williams to make the referral on the spot, but of course he hasn’t—he never will. The current supervisor has only escalated one case to the AGO, and under Galvin that one referral is the only one we know of in the last six years. There is nothing in the law that stops the AGO from acting on records law violations when they don’t have a referral, so that excuse is hollow anyway. Plus the supervisor was copied in the email, so he could have asked to have the order enforced on the spot.

This particular case is worse than average. The district attorneys in Massachusetts are supposed to be part of the enforcement system. Not only should they understand and follow the law, they ought to be prosecuting people, like Capeless, who break it. Moreover Healey, our state’s top prosecutor, should hold prosecutors to a high standard—but she accepts their lawbreaking without batting an eye.

The process of trying to get records about this loss of evidence has failed for a year already—if we can’t get this order enforced, then what purpose does the law even serve?

BONUS: More on Galvin and Healey’s efforts to promote transparency: the former has no responsive records for the following items:

Any protocols defining when an order would be referred to the AGO for enforcement.

A list of hearings held under CMR 32.08 (hearing held by the records division over records appeals).

Records division personnel’s performance reviews.

We asked the AGO for some of Healey’s emails, but instead of responding in 10 days as required by law her office sent a letter saying they will respond eventually. We followed up twice, but have not received a response.