Above the Public Records Law: the Mass State Police and transparency

Will anyone ever hold the Mass State Police accountable for hiding information from the public?

On Friday, I was featured on NBC10 Boston for a story about the Massachusetts State Police’s frequent refusal to comply with the state’s Public Records Law. The segment was part of the new series, “Commonwealth Confidential: The State of Policing,” which takes an in-depth look at the countless problems with the state’s largest law-enforcement agency.

You can watch it here:

Here’s a little bit of what I said:

“We in theory have a Public Records Law that allows people to get access to just about anything, but in practice is full of holes.”

As a freelance journalist who reports on police misconduct, Andrew Quemere is all too familiar with the pitfalls of the Massachusetts Public Records Law.

“Agencies just act as though they’re above the law, and they will ignore public records requests if they don’t want to answer them.”

I told NBC10 about when, in 2022, I asked the State Police for two spreadsheets with data on complaints and use-of-force incidents. The law gives them 10 business days to comply with records requests, but it took them 11 months, multiple appeals, and repeated prodding to drag those two Excel files to an email and hit send.

It didn’t make the NBC10 segment, but I previously wrote about how, after I published these spreadsheets, the State Police contacted me just one day later to say they accidentally failed to redact the birthdates of state troopers from one of the spreadsheets and asked me to remove them.

It was striking how the department’s process for responding to records requests was so dysfunctional that no one bothered to review these documents even though they took nearly a year to do so. What was also striking was the speed with which they acted when they wanted me to remove something they didn’t want to be public compared with how long it took them to respond to my request.

Here’s what the State Police told NBC10:

In response, a Massachusetts State Police spokesperson said the agency has procured a software that tracks requests and provides requesters with direct access to attorneys assigned to their requests via an online portal. The spokesperson said that development reflects commitment to improvement of transparency and efficiency of public records responses.

“The Massachusetts State Police remain committed to earning and maintaining public trust by delivering excellent police services and fulfilling our responsibilities under the Public Records Law,” the spokesperson said in a statement. “Recognizing the large volume of complex requests, the Department has created a dedicated public records unit staffed by qualified legal professionals who receive requests, identifying responsive information, and determine if any redactions should be applied for the protection of witnesses, victims, investigatory subjects, and public safety.”

But I’ve seen no evidence of an improvement. This year, I sent the State Police a request in February and another in March, both related to my investigative reporting. The department simply ignored both requests for months. I finally received responses to both in October.

But instead of providing the records, the department sent me two identical emails:

The Department of State Police (“the Department”) is researching your public records request. Because this request was submitted over 90 days ago, we ask that you reply to this email confirming you are still interested in the Department responding to your public record request. Please do not alter the subject line to ensure proper delivery.

Please be advised this request will be considered closed if the Department does not receive a response from you within 10 business days.

Rather than complying with my requests, the State Police told me that they wouldn’t give me the records unless I jumped through another hoop by confirming that I did in fact want them.

Of course I want them! That’s why I requested them in the first place!

I immediately wrote back and said that I still wanted the records. That was October 17 — more than a month ago. Unsurprisingly, the State Police still haven’t sent me any of the records or even bothered to explain why it’s taking so long.

This is especially ridiculous because the State Police have a half-a-billion-dollar budget and could comply with the vast majority of records requests they receive with ease if they simply decided to dedicate the necessary resources. Their failure to comply with requests like mine is a choice, not an issue with the volume of requests they receive. As I told NBC10, “[They’re] one of the most well-funded agencies in the state, and they simply will not respond to a records request if they don’t want to.”

The reason the State Police act as though they’re above the Public Records Law is because, for all intents and purposes, they are.

Massachusetts, to its credit, has an administrative appeals process for records requests. If an agency doesn’t respond to your request, refuses to release records, or tries to charge an excessive fee, you can send an appeal to the Public Records Division of the Secretary of the Commonwealth’s Office. The Public Records Division is overseen by the supervisor of public records, whose legal staff review the appeals and order the agencies to follow the law.

But there’s a major flaw in this system: The supervisor of public records cannot sue agencies that refuse to comply with these rulings. Instead, the supervisor must send the decisions to the Massachusetts Attorney General’s Office, which does have the power to bring lawsuits — but almost never does. The lack of enforcement means that agencies like the State Police can, and often do, blow off the supervisor’s orders.

The State Police are one of the most frequent subjects of public records appeals. According to CommonWealth magazine, the department was the subject of 181 appeals in 2019. The supervisor sided against it in 178 of those appeals — nearly all of them. Of the 2019 appeals, 124 (68 percent) were filed because the State Police failed to even respond to the request.

The State Police have racked up a huge number of appeals every year since. From 2020 through 2023, the department was the subject of 705 appeals, an average of 176 per year, according to data published by the Secretary of the Commonwealth’s Office. So far this year, the State Police have been the subject of 200 appeals.

If appeals go nowhere, people can file their own lawsuits, but it’s incredibly difficult to find a lawyer who will help. I have pending lawsuits against the Northwestern and Bristol County district attorney’s offices for withholding records related to allegations of police misconduct, and just getting legal representation was a major challenge. I was lucky enough to find a law clinic willing to assist me, but there are only so many lawyers who work on public records cases — and they only have so many clients they can take on at a time.

In 2016, the Public Records Law was updated so that judges can order agencies to pay the legal fees of people who bring successful public records lawsuits. But because these suits take months or even years, the possibility of getting paid at the end of the process provides little incentive for lawyers to get involved.

The system will never be perfect, but the most important thing lawmakers could do to fix it is to remove the state’s enforcement power from the Attorney General’s Office, grant it to the supervisor of public records, and give the supervisor enough resources to make use of it.

As I told NBC10, “The supervisor of public records has to have the ability to just take these agencies to court, to sue them, and to force them to comply instead of just having this system where they can’t do anything.”

According to NBC10, the Secretary of the Commonwealth’s Office said it agrees that the supervisor should have the power to enforce these decisions in court. With a new legislative session beginning next year, I hope we’ll see efforts by Secretary of the Commonwealth William F. Galvin to pressure legislators to update the law.

Of course, this is Massachusetts. I’m not counting on any sweeping reforms any time soon — but it won’t stop me from banging on this drum.

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You can watch more of NBC10’s Commonwealth Confidential series here.

If you’re a new reader who found out about The Mass Dump from the NBC10 segment, please check out my reporting on the Elliott Chambers Rooming House Fire and the James Carver case or my recent story about compensation for people who were wrongfully convicted of crimes.

If you’re interesting in the Public Records Law, here’s my advice for people making their first records requests. And here’s a podcast with my advice for filing appeals. And here’s an example of the kind of important investigative reporting made possible by public records.

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