“MSP is breaking the law” — What else is new?
State Police continue to dodge records requests
On Friday, Cape Cod Times reporter Jeannette Hinkle tweeted about a frustrating experience requesting public records from the Massachusetts State Police. Unfortunately, requesting records from the State Police is almost always frustrating.
“The Massachusetts State Police is a habitual offender — verging on a career criminal — when it comes to breaking [the public records law],” the Telegram & Gazette noted in 2013. The group Investigative Reporters & Editors gave the State Police a Golden Padlock award in 2015, citing the agency’s absurd demand that I pay a $710.50 “non-refundable research fee” so that it could estimate another fee to charge me for copies of internal-affairs records. The State Police’s award-winning secrecy has remained a constant since then.
A CommonWealth magazine article that examined 2019 public records appeals found that the State Police were responsible for a sizable number: “The State Police lost 178 of the 181 public records appeals filed against it in 2019, 124, or 68 percent, of them pertaining to the department’s failure to respond to the requests.” The State Police have continued to rack up huge numbers of appeals since then: There were 170 in 2020, and 209 in 2021. So far this year, the department has faced another 39.
Hinkle, like so many others, is struggling just to get a legally mandated response from the state’s largest law-enforcement agency.
“Been trying for months to get a very simple question answered by the Massachusetts State Police. How many towns don’t have a municipal police department and are instead patrolled by MSP? Ghosted by media relations, filed a records request, ghosted by legal. Golden padlock indeed,” Hinkle wrote. “At this point, the Massachusetts State Police is 20 BUSINESS days past the deadline by which state law requires a response to my request. Put another way, MSP is breaking the law.”
When Hinkle first submitted her request, the State Police sent her an automated reply telling her to resubmit her request through its online portal — even though the public records law requires agencies to accept emailed requests and does not allow agencies to mandate the use of specific forms.
“I was shocked to get an auto response from the public records email saying they don’t check it much so people should also file the request in their dumb portal. So I filed it via email, portal AND sent it to [State Police spokesman David] Procopio. Didn’t make a difference,” Hinkle wrote.
I experienced the same issue in January. I requested the State Police use-of-force committee’s annual reports, which contain statistics showing how often state troopers use force each year.
I almost immediately received an automated reply that “advised that the Massachusetts Department of State Police has implemented a new process for members of the public and members of the press requesting public records.” The email told me to submit my request using the portal, which requires a phone number and address — information an agency cannot require a requester to divulge. The automated reply said that emailed requests “may not be received in a timely manner” and “strongly advised that all public records requests be submitted to the webpage.” I ignored the admonition, and the State Police likewise ignored my emailed request.
After I filed an appeal, the public records division contacted the State Police. Allison Mondello, a State Police lawyer, responded by pointing to the automated email. “We did not receive his request via the online portal, which has resulted in a delayed response from us. Regardless, we can now intake his request for processing and he will receive a formal response from this Department,” she wrote.
In other words, the State Police don’t bother checking their email for records requests — they just ignore them until appeals are filed. You’d think that with all that money for fraudulent overtime, the State Police could afford to hire a few clerks to monitor the department’s email, but I guess that would be asking too much.
On February 15, I got an email from Katie Darling, a public records “research analyst” with the State Police. “We have located records responsive to your request; however, they are currently under review. We hope to have them to you soon,” she wrote.
But that email, now more than a month old, was the last I heard about my request — I guess the review process for these records is particularly thorough. On March 16, I filed a second appeal for all the good it will do.
Hinkle says she has no plans to give up either. “I’ll play the game to the end,” she wrote.
Wheeler Cowperthwaite, a reporter for the Quincy Patriot Ledger, chimed in with his own State Police story: “I asked for [internal-affairs] records for Matthew Sheehan, charged for shooting a man while on duty, and [the State Police have] ignored a [supervisor of public records] order to turn over the docs since last September.”
Sheehan, a state trooper, was one of a number of officers who confronted a group of ATV and dirt-bike riders in 2018. Sheehan, the only officer to fire a weapon during the incident, used a rifle to shoot Aderito Monteiro in the foot. In 2019, the trooper was indicted on charges including assault and battery with a dangerous weapon. Last year, Monteiro filed a lawsuit against Sheehan.
At the time of the indictment, Sheehan was on leave from the department after the Boston Globe discovered his history of advocating violence and making racist comments online. Sheehan was also one of the many state cops implicated in the overtime fraud scandal.
In response to Cowperthwaite’s public records request, the State Police provided some records in redacted form and withheld others entirely. On September 10, the supervisor of public records determined that the State Police had failed to justify the redactions and the decision to withhold records. The supervisor ordered the agency to provide a new response within 10 business days.
But Cowperthwaite hasn’t heard anything from the department since then.
As it stands, there’s little that requesters can do when the State Police or any other government agency ignores an order from the supervisor. The supervisor can refer an appeal to the attorney general’s office, which can enforce the law in court — but this is rare. It’s possible to sue an agency, but there are few lawyers in the state who do this kind of work and such lawsuits are also rare.
“This is a perfect example of why the [Massachusetts public records] law needs a penalty based on days of non-compliance,” Cowperthwaite wrote.
UPDATE: This afternoon, Hinkle tweeted that she was finally able to get a response to her request.
“It was confusingly written, but I believe I got the answer. The towns patrolled solely by MSP are: Alford, Mount Washington, Richmond, Hawley, Monroe, Florida, Hancock, New Ashford, Montgomery & Wendell,” she wrote. “They sent a spreadsheet showing coverage responsibilities by barracks/troop. Some towns have full coverage by MSP, some have shared coverage, some have self coverage.”
She added: “It shouldn’t have taken the time that it did, and it shouldn’t get to the point of complaining on Twitter.”
Post-Sunshine Week Roundup
Last week was Sunshine Week — the News Leaders Association’s annual national initiative to promote open government and access to public records. I want to highlight all of the great local reporting and editorials that were published this year for those who don’t pay the same obsessive attention to this issue that I do.
First, check out my newsletter from last week if you haven’t read it yet. I offered some tips for how to get involved with Sunshine Week — including how you can make your first public records request — and those suggestions remain relevant even though the week is over.
Telegram & Gazette reporter Brad Petrishen wrote a must-read piece about how New Hampshire recently released a statewide list of problematic police officers but Massachusetts does not have a comparable list. The purpose of such a list is to protect the due-process rights of people who are accused of crimes by allowing them to challenge the testimony of disreputable officers. Some local prosecutors keep their own “Brady” lists and others do not. Petrishen’s piece points out that having a statewide list of officers is preferable to giving local prosecutors discretion:
State Sen. Jamie Eldridge, a progressive Democrat from Acton, said that, given county prosecutors’ reliance on their relationship with local police, a higher authority should be tasked with maintaining a Brady list.
“(Prosecutors and police) are obviously working together closely to prosecute people, which, of course, makes sense,” he said. “However, I think that also has an influence where it causes DAs, more often than not, to avoid holding police accountable.
“The attorney general, as the state’s chief law enforcement officer, is the perfect office to do this.”
Eldridge said a statewide approach to criminal justice issues is, in his mind, increasingly necessary at a time in which racial equity issues are at the fore.
On a related note, I have an ongoing project to obtain Brady lists and related records from local prosecutors, which I have written about here and here. I will publish more information about the project soon.
Boston Business Journal editor Don Seiffert wrote about how the governor’s office is exempt from the public records law. Seiffert tried to find out how often the governor voluntarily complies with records requests:
You can probably guess what the result was. Ten business days later, a flat denial, citing that withholding those records is “consistent with the public records laws as interpreted by the Supreme Judicial Court.”
So not only does the Massachusetts governor’s office refuse to abide by public records laws that municipalities, the federal government and the majority of other state follow. It also refuses to say how often it’s claim that it “considers and to responds” to such requests voluntarily is actually true.
A bill currently being reviewed by the legislature’s joint committee on state administration and regulatory oversight would apply the public records law to future governors. I wrote more about the bill here. If you want to contact your state legislator about the bill, you can look up their contact information here. You also might want to contact the members of the committee reviewing the bill.
Martha’s Vineyard Times reporter Rich Saltzberg wrote about how the attorney general recently backed up a 2020 records request by the paper:
The Office of Attorney General Maura Healy has found in favor of The Times regarding a records request the Barnstable County Sheriff’s Office (BCSO) refused to fulfill. The records pertain to Danielle Clermont, a former Tisbury Police Department candidate who years before her candidacy was found in contempt of court and ordered held in jail by Edgartown District Court Judge Lance Garth. The Times specifically sought Clermont’s transfer and incarceration records, made its initial request in July of 2020, and appealed denials from BCSO to the state’s supervisor of records. … The letter states the AGO reserves the right to “compel” the BCSO in superior court to comply with the “action requested” in the letter if BCSO doesn’t do so on its own accord.
Every Sunshine Week, MuckRock and the Electronic Frontier Foundation publish The Foilies, “tongue-in-cheek ‘awards’ for government agencies and assorted institutions that stand in the way of access to information.” This year, the organization gave one award to Worcester for its handling of a public records request:
DigBoston’s Maya Shaffer detailed how officials are giving themselves at least one extra business day to respond to requests while still claiming to meet the law’s deadline. In a mind-numbing exchange, an official said that the agency considers any request sent after 5 p.m. to have technically been received on the next business day. … The theory is reminiscent of the This Is Spinal Tap scene in which guitarist Nigel Tufnel shows off the band’s “special” amplifiers that go “one louder” to 11, rather than maxing out at 10 like every other amp.
Framingham SOURCE editor Susan Petroni wrote about how the governor’s office, the state legislature, and the judiciary are exempt from the public records law:
So while the emails of Framingham City Councilors, Natick Select Board or School Committee members can be requested under a public record request, the emails of your state representatives or state senators can not.
And while emails from the Mayor of Framingham or the Town Manager in Ashland can be requested under a public records law, the emails of Governor Charlie Baker are exempt.
Petroni wrote separately about how she filed an open-meeting complaint against the Framingham board of health. The attorney general’s office found that members of the board violated the law by participating in interview panels for a new director of public health without providing notice to the public.
Wareham Week reporter Alexandra Weliever wrote about how the Wareham Conservation Commission recently faced two open-meeting complaints by resident Nora Bicki. The attorney general’s office found that the commission violated the law in several ways, including not keeping meeting minutes.
Wheeler Cowperthwaite shared a piece he wrote while working for the Cape Cod Times. The 2019 story, which is “about how all judges in the state are appointed in an opaque process by the governor, and how it doesn't have to be that way, is still relevant,” he tweeted.
The New England First Amendment Coalition joined the ACLU of Massachusetts, Common Cause, and other groups to send a letter to the Governor’s Council, calling on it to resume providing remote access to meetings:
In the letter, the groups explained that remote access allows civic engagement for those with disabilities, seniors with mobility issues, parents with young children, people with chronic medical conditions and others who are unable to attend meetings in person.
“Remote access is the latest instance of universal design — alongside curb cuts, elevators, closed captioning, audiobooks, and other features — that began as accommodations and expanded to universal popularity,” they wrote. “Like these innovations and others emerging during the pandemic, remote access to public meetings should become a permanent feature.”
Justin Silverman, the director of NEFAC, also wrote an opinion piece that was published by a number of news outlets. Silverman argues that transparency is necessary for addressing the country’s political polarization:
Given the degradation of political discourse in our country and the growing list of hot-button issues pitting us against friends and neighbors, it’s easy to see the divide. But as Sunshine Week begins this year, let’s remember that no matter where we stand on a particular topic, we all need accurate information to shape our opinions and best advocate for ourselves.
If you like podcasts, check out Silverman’s appearance on the Marcus Ferro Show, where he talks about both his opinion piece and remote access to public meetings in Massachusetts.
At least two newspapers published their own editorials about the importance of transparency. Here’s the Berkshire Eagle:
When a North Adams man asked the city’s Airport Commission for meeting minutes from previous years, he wasn’t asking for a public entity to provide a service for him; it was a citizen asking that entity to furnish public records that already belong to him and all other citizens. And when the Airport Commission said city files were missing at least a decade of minutes, that’s not simply a blunder of official disorganization; it’s a failure to live up to the social contract of a free society, wherein citizens should have open and easy access to the information needed to hold responsible those who represent us.
The Lynn Daily Item published an editorial about the importance of the open-meeting law. After listing some pending complaints, it concludes:
How these complaints will be resolved remains to be seen but we point to them as examples for why now is a good time for public officials to take a refresher course in the Open Meeting law and recommit to adhering to its tenets for the public good and the good of democracy.
The group Progressive Mass released its mid-session legislative scorecards, which grade state lawmakers on their recorded votes:
We believe that Democracy functions best when there’s transparency. And, our Massachusetts Legislature functions best when citizens know what votes our elected officials are taking and when we can compare their actions to their rhetoric. But on Beacon Hill, that’s not such a straightforward proposition.
Finding your legislator’s voting record, and understanding it, can be very difficult and time-consuming. With our “progressive scorecards,” finalized at the end of every 2-year legislative session (but with mid-session updates), we aim to make it easier.
On the other side of the political aisle, the Pioneer Institute published a post about different ways the state is failing to be transparent and how those shortcomings can be remedied. It mentions that earlier this month, it had announced the formation of PioneerLegal, “the first non-profit, public interest law firm of its kind in New England.” The offshoot, among other priorities, will “champion transparent and accountable government that protects citizens’ rights” — and it will do so “through legal research, filing amicus briefs and litigation.”
PioneerLegal’s website states that the it will “litigate, under provisions of the U.S and states’ constitutions, to restrict certain exemptions from [the public records law] that are abhorrent to a free and engaged society.” The Pioneer Institute’s Sunshine Week post argues that the state legislature’s exemption from the public records law violates the state constitution. “Who knows, maybe someday someone will take the case to the Massachusetts Supreme Judicial Court,” it adds. Is this a coy hint that PioneerLegal is planning to sue the state legislature? It’s unclear at this point — but either way, it’s exciting that the state has another player in public records litigation.
The state comptroller’s office published a post about Sunshine Week — making it, to the best of my knowledge, the only government agency in the state to recognize the initiative this year:
Said William McNamara, Comptroller of the Commonwealth, “Transparency promotes trust in government. As stewards of public finances, transparency is a core component of CTR’s mission, and we are proud of our record in this area to ensure that members of the public have easy and available access to public information.”
The post includes details about recent steps taken by the agency to increase transparency.
I hope I didn’t miss any stories or opinion pieces. If I did, please let me know so that I can add them. Also, 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.
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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 you updated on all the latest local public records developments.
And don’t forget to set a reminder for next year’s Sunshine Week.
That’s all for now, folks.
NOTE: I added the stories from the Boston Business Journal and Martha’s Vineyard Times after sending this newsletter out, so folks reading it in their inbox won’t see them.
UPDATE/CORRECTION (5/23/2022): Apparently I was wrong about the comptroller’s office being the only government agency to participate in Sunshine Week. The secretary of the commonwealth’s office has been publishing a Sunshine Week infographic every year since 2017, when Rebecca Murray took over as supervisor of public records.