‘Broken Records’ image by Tak Toyoshima
Massachusetts Attorney General Maura Healey says she wants our state to have a public records law with “teeth”—the means to enforce the law when government agencies refuse to hand over public records. But teeth don’t mean much unless you’re willing to bite.
Healey is correct that the public records law needs fixing. It’s widely considered one of the worst freedom of information laws in the country, and with good reason. But the reality is that those “teeth” are already in the law. The real problem is Healey’s reluctance to use them.
Let’s be clear: Violating the public records law is a crime. As in, you can go to jail for up to a year and be personally fined hundreds of dollars for each and every violation. But you wouldn’t know that from listening to Healey, who has never prosecuted anyone for violating the public records law.
Oversight of the public records law is split between the secretary of the Commonwealth’s office and the attorney general’s office. The former hears appeals from people who have been denied access to public information, and has the power to order agencies to produce records. However, Secretary William Galvin has no enforcement power and must turn to the AGO to sue agencies on the public’s behalf to force the release of records, and to prosecute officials who break the law.
In a previous column, we examined how Galvin’s office has failed in its duty to keep public records accessible. Not all the blame should fall on the secretary though. Healey is equally guilty of impeding access to public records, and deserves to be taken to task for it.
FALL RIVER FIASCO
Under the last attorney general, Martha Coakley, the AGO and Galvin’s office developed a seemingly dysfunctional relationship. Galvin’s office became fed up with the AGO for frequently disagreeing with its interpretation of the law. So for five years, his office simply refused to refer any violations to the attorney general.
Shortly after Healey took office last year, she promised to make public records a priority. “My job as attorney general is to make sure the public records law is enforced aggressively,” she told the Boston Globe. In May, Healey got her chance. Galvin’s office finally referred a public records violation to the AGO—and it was one of our requests.
In 2014, when we made a request to the Fall River Police Department for information about the arrest of a man for using his cellphone to record a police officer swearing loudly on his phone while working a detail. The department tried to overcharge us. We filed an appeal with Galvin’s office and won, but Fall River Police Chief Daniel Racine balked. Instead of contacting us with a new fee estimate, he told a reporter from the Herald News that the department had no intention of complying. “The arbiter in these matters is the superior court,” he said, rejecting the ruling.
After being contacted by the AGO months later, the police department changed its tune and provided a revised fee estimate that was more than 100 dollars lower the original. But we didn’t learn about the referral from the AGO or even from Galvin’s office. We were actually tipped off by Todd Wallack, a Globe reporter who ultimately wrote a story about the proceedings.
When push came to shove, Healey’s schtick about aggressive enforcement was all talk. Blustering Racine, with his outspoken refusal to comply with the law, was a prime candidate for a criminal prosecution. But the AGO let his apparent lawbreaking slide, and didn’t even have the courtesy to contact us about our own case.
Since the Fall River incident, Galvin’s office has yet to refer another violation of the public records law to the AGO (and not for lack of trying on our part), according to documents we received in January. While we can’t blame Healey for Galvin’s office being useless, we can blame her office for refusing to fill the void. State law doesn’t stop the AGO from proactively investigating or taking action on violations, so we attempted to cut out the middleman by asking Emalie Gainey, a spokeswoman for Healey, which attorney in the AGO we could contact to have the public records law enforced. She responded that the AGO only takes referrals from Galvin’s office. Despite that setback, we made some other attempts to get the AGO to take action:
- It’s a crime to destroy public records, but the MBTA did just that by deleting a surveillance video that we requested. On this matter, Galvin’s office made the Kafkaesque decision to not notify the AGO because “there are no other responsive records available,” so we reported it to Gainey ourselves. In response, Gainey sent us a link to what she called “some information about filing a criminal complaint,” which instructed us to go to a local police station and file a report ourselves.
- In December, we sent Sutton Police Chief Dennis Towle a request for records related the department’s traffic ticket quota, which came to light after an officer sued the department. Towle has not responded to date, even though he was legally required to respond within 10 days. We tried to report this violation to the Sutton Police Department, but an officer refused to take a report, instead suggesting that we contact the attorney general. We took the officer’s advice, and explained to the AGO that the police referred us, but they never responded, leaving us in the middle of a game of hot potato.
- After Galvin’s office spent months ignoring a November request for records related to the Northeastern Massachusetts Law Enforcement Council, we reached out to the AGO for help. Only to be told by Gainey that we could file a lawsuit ourselves. Galvin’s office still hasn’t responded to the request. Apparently, it’s up to Galvin’s office itself to decide whether it will be investigated by the AGO.
To be fair, it might be awkward for Healey to pursue violations given that her own office has trouble following the public records law. On January 12, while doing research for this story, we requested copies of all the AGO’s communications with Galvin’s office about public records requests since Healey took office. After 17 days, the AGO said it would provide “a substantive response … by the end of next week.”
Except it didn’t, and it still hasn’t.
“Broken Records” is a biweekly column produced in partnership between the Boston Institute for Nonprofit Journalism, DigBoston, and the Bay State Examiner. Follow BINJ on Twitter @BINJreports for upcoming installments of Maya and Andrew’s ongoing reporting on public information.
Andrew Quemere has been making public records requests in Massachusetts for more than a decade. He writes The Mass. Dump Dispatch, a newsletter about public records. Subscribe to read about the latest developments in government transparency. Follow him on Twitter @andrewqmr.