A little ray of sunshine
It’s Sunshine Week!
It’s Sunshine Week — an annual national initiative to promote open government and access to public records. Sunshine Week was started in 2005 by the American Society of News Editors, which is now the News Leaders Association. First, I have a few quick links to share — then we can get into the meat.
Last month, I wrote a lengthy piece about the Telegram & Gazette’s public records lawsuit against the city of Worcester. The city had used some absurd arguments to justify refusing to release police internal-affairs records. A Superior Court judge concluded that the arguments were so asinine that the city was acting in bad faith and was on the hook for the paper’s legal fees and for punitive damages.
I recently appeared on Bill Shaner’s Worcester’s Good But Hurts podcast, and we spent about 45 minutes talking “about the decision, what it means for public records access in Massachusetts, and more importantly about how the city handled this lawsuit like a little piss baby,” as Shaner aptly put it.
I also followed up on the story for a guest piece for Shaner’s Worcester Sucks and I Love It newsletter. I learned that we will probably never know just how many tax dollars the city flushed down the toilet fighting the T&G because it didn’t bother to keep track.
Some of you are new readers who found this newsletter through Bill Shaner — so thanks for subscribing!
I have a few suggestions for those of you who want to get involved in making state and local government more transparent in Massachusetts.
Keep your eye out for Sunshine Week stories in your local newspaper. If you see a good one, send some words of encouragement to the reporters behind it and to the paper’s editors — they’ll appreciate it! Tell them this kind of work is important. If you don’t see anything about Sunshine Week, ask why not (unfortunately, the answer might be budget and staffing cuts). Please leave links to local Sunshine Week stories in the comments or tag me on Twitter; I plan to post a roundup when the week is over.
Contact your state legislators. Tell them to support “An Act increasing access to public records” (SD.2981), which would apply the public records law to the governor’s office. It’s totally absurd that the governor — one of the most powerful officials in the state — is above a law meant to hold the government accountable to the public. The lack of access to these important records does a disservice to us all, and we should be pressuring our state lawmakers to implement this simple but crucial reform. I wrote more about the bill here. You can look up your state legislators and their contact information here.
Pay attention to what candidates are saying about public records. The outcome of this year’s election could have a big impact on records access. If you get a chance to speak with a candidate, ask them about their stance on public records and government transparency in general and tell them that this issue matters to you. I’ve written a bit about the election here and here, and I will have plenty more to say in the future.
Make your first public records request. Public records are called “public” for a reason. They’re not just for journalists or lawyers. Anyone can make a public records request, and everyone should try at some point — what better time than Sunshine Week? It might seem a little daunting at first, but once you get the idea it’s as simple as sending an email to the right person. Here are the basics.
First, think about why you are making your request. Maybe something you read in a news story raised a question in your mind. Is it possible you could answer that question with the right records? State law defines public records broadly — “all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics.” The law applies to almost anything you can think of. Could there be emails between government officials that would shed some light on your question? Were any contracts signed? Is there a written policy? Is there a database that you could analyze if you had access to it? If you are interested in a specific incident, did anyone write a report about it? Was the incident captured by a police body camera or perhaps a surveillance camera?
Every town, city, and state agency must appoint at least one records access officer (RAO). Sometimes municipalities have different RAOs for different agencies (for example, an RAO who handles all requests for the police department). You should generally be able to find the contact information for RAOs online. If the contact information isn’t listed, try calling the municipality or agency to ask about it. If you’re requesting records from a municipality, you can also try sending your request to the town/city clerk.
You can send your request by mail or email — email is usually the best way to do it. Some municipalities and state agencies also have online portals for making requests, although they cannot require you to use them.
Next, draft your request. How you word your request is up to you, but it should be as specific as possible to avoid any confusion and delays. Being specific is also important because requesting a large number of records might result in the RAO assessing fees. Depending on what you request, you might want to specify a date range. On the other hand, being too specific might mean that you miss out on records of interest, so give the wording some thought before you hit send. Sometimes there are multiple ways of approaching a request — for example, you can try asking an RAO to provide emails that contain specific search terms instead of emails related to a certain topic.
Your request doesn’t have to follow a specific format, but the secretary of the commonwealth’s office has a template that you can use when you are getting started. If you intend to make a lot of requests, you might want to create your own template. I created voice-recognition commands that insert my own custom template, which I occasionally update. It specifies that records should be provided in an electronic format that is searchable and machine readable. It also says that if the RAO believes my request is overly broad, they should provide a description of what records are in their possession so that I can make an informed decision about whether to narrow my request.
After you submit your request, the municipality or agency has 10 business days to respond (approximately two weeks). If you’re lucky, you will get all the records you request. The RAO might also say that they need more time or that your request is unclear or overly broad. If this happens, try starting a back and forth with the RAO to get a satisfactory resolution.
It’s also possible that you won’t get a response or that the RAO will refuse to release the records, will heavily redact the records, or will assess a large fee. If this happens, you can challenge the response by sending an appeal to the supervisor of public records, who is part of the secretary of the commonwealth’s office. You can find more information about that process here.
The secretary of the commonwealth’s office publishes “A Guide to the Massachusetts Public Records Law.” It’s not strictly necessary to read this before making your first request, but you absolutely should review it at some point. If you end up making an appeal, you will find the sections about exemptions and fees very informative. You should save a copy of the guide to your computer and use it as a reference, especially when making appeals.
I don’t want to say too much about the appeals process right now, but don’t be too intimidated by it. Your appeal doesn’t have to be written in legalese — simple language is usually better. For instance, if an agency says it will not release records and includes boilerplate language about an exemption but does not specify how the exemption applies to the records, simply pointing out that fact is usually sufficient. Sometimes there’s more to it than that, but don’t stress about mastering the appeals process before you make your first request. Once you get a response, you have 90 days to make an appeal, so you’ll have plenty of time to figure out what to do.
After the 2016 public records law took effect, I wrote a piece for DigBoston with some information that you might find helpful. MuckRock and the New England First Amendment Coalition also have resources that are worth checking out. If you’re an auditory learner, NEFAC has some great videos.
If you ever get confused, try reaching out to someone with experience making requests. I do my best to answer questions that people send me, and I’ve found that many other journalists involved with public records are generous with their time and expertise. Naturally, the spirit of openness pervades the open-government community. On a related note, if you have an interesting — or perhaps frustrating — story about trying to obtain public records, send it to me and I’ll consider writing about it. You can send me an email here or a direct message on Twitter.
Brady List — Berkshire District Attorney’s Office
Brady lists are lists of police officers with credibility problems that prosecutors might need to disclose to defendants in criminal cases. The name comes from the 1962 Supreme Court case Brady v. Maryland, which held that prosecutors have a duty to disclose potentially exculpatory information to criminal defendants. Police departments work with prosecutors on a regular basis and an individual police officer might testify in many cases, so the lists are an important tool for protecting the due-process rights of people charged with crimes.
I’ve been continuing to work on a project to get Brady lists and related documents from all prosecutors’ offices in the state. I have a bunch of updates and I was intended to compile them all into a single newsletter, but I’m now planning to release the documents in piecemeal fashion, because it will be a lot easier for me. I previously released a bunch of Brady lists and related documents here. Today, I’m focusing on the Berkshire district attorney’s office.
Berkshire District Attorney Andrea Harrington adopted a policy of maintaining a Brady list in July 2020. According to the Berkshire Eagle:
Though the precedent in Brady v. Maryland is nearly six decades old, Harrington, now in her 18th month as Berkshire district attorney, saw it as unfinished business in Berkshire County.
The legal system, she said Tuesday [July 28], is designed to prevent false convictions by allowing defense attorneys access to exculpatory material. But she says the office she took over did not have a written policy detailing how police and prosecutors would live up to obligations outlined in the Brady case and in state law.
"That is the cornerstone of the trial system," she said of pretrial disclosures. "The Commonwealth has tremendous power in the system because we have investigators, we have police, we have the crime lab."
"We're the gatekeepers for the information. We have to hold ourselves to high standards to ensure that everybody gets a fair trial, which they're constitutionally entitled to," Harrington said.
As part of the policy, Harrington's office is asking local police departments to comb through a decade of criminal cases for instances in which facts favorable to the defense may not have been properly disclosed.
This January, Andrew McKeever, the communications director for the office, said he was working on gathering the records I requested and would tell me “very soon” when I could expect them. Then he disappeared. I filed an appeal, and the supervisor ordered the district attorney’s office to respond to my request.
The next day, McKeever provided me with the office’s current Brady list, which is dated October 29, 2021. The list includes the names of 20 police officers and one police dispatcher for whom “there is information for disclosure pursuant to Brady v. Maryland.” The list also specifies that eight of the officers “should not be called as a witness without prior approval.”
McKeever also provided letters sent to police departments and officers notifying them that information about an officer is potentially exculpatory. He also provided letters sent to criminal defendants advising them about potentially exculpatory information; some of these letters were sent out under Andrea Harrington, and others were sent out prior to her administration.
McKeever did not provide any of the records documenting the alleged misconduct by officers. He explained:
The Berkshire District Attorney’s Office does not offer wholesale opinions as to which documents qualify as “Brady information.” The court determines the relevance and/or admissibility at the request of Defense Counsel. Further, the Berkshire District Attorney’s Office is not the keeper of records for any such material. Those materials are provided by the individual police departments or the court upon order of the court.
I’m following up on one of the incidents mentioned in some of these documents, so expect to hear something about that later.
Tracking Police Misconduct With Media Reports
As I’ve mentioned previously, I’m building a database of all allegations of misconduct by Massachusetts police officers that are reported by the news media in 2022.
Here are the latest entries to the database:
MassLive: Boston police officer sentenced to one year of probation and must pay restitution to victim after in 2019 mailing fraudulent traffic citation and threatening letter after road-rage incident
Boston Globe: Boston police officer, already on leave due to pending internal affairs investigation, arrested on assault charge after allegedly pointing gun at two adult sons during dispute about TV volume
Universal Hub: Boston police officer charged with trying to intimidate detective who was investigating his compliance with the city's residency requirement
Herald News: Fall River police officer, already facing domestic violence charges from 2021, is again charged with domestic violence
Salem News: Salem police officer charged with cashing more than $10,000 worth of fraudulent money orders at local bank
MassLive: Springfield settles for $262,500 with teen who was threatened with violence and false charges by detective during 2016 interrogation
Boston Globe: State troopers may have inflated hours in hundreds of details, getting overpaid as much as $150,000, according to report by the state inspector general's office
WCVB: Five members of the State Police sue the department alleging it discriminates against employees who take parental leave
DOJ Press Release: State Police reach agreement with Department of Justice, resolving allegations that State Police failed to comply with communications obligations for individuals who are deaf or hard of hearing
NBC10 Boston: One Worcester police officer fired, another suspended and given last-chance agreement after both overdosed on cocaine while partying in 2021; fired officer was already on last-chance agreement
The database now has quite a few entries, so I’d like to release a version of it soon. However, I’m still trying to figure out the best way to categorize things, so it remains a bit tentative. As always, if I missed the story, please send it to me.
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As always, thanks for reading. If you enjoy this newsletter, please consider becoming a paid subscriber so that I can keep dedicating my time to this work. I’m not a fan of paywalls, so you don’t need to pay to get access — but your support is what will allow me to keep fighting for the release of important records like Brady lists and provide updates on public records-related election news, legislation, and lawsuits.
That’s all for now, folks.