The Brady Bunch
Today, you can check out my first big document dump since I started writing this newsletter.
But before we get into that, I want to highlight some news about the Massachusetts Police Officer Standards and Training Commission, which was created by the 2020 police reform law. Last week, WCVB reported:
POST is in the process of setting up a centralized database of internal affairs investigation summaries of all active officers from every department in Massachusetts. They’ll track the type of complaint, the investigation’s outcome, the officer’s name and any discipline handed down. Then the commission will determine who continues to protect and serve.
However, it will be a while before the database is up and running:
By statute, all internal affairs investigation summaries were originally due to POST by Sept. 30, but the commission was forced to extend the deadline to Dec. 31. According to data obtained by 5 Investigates, 22%, or 100 of the 446 law enforcement agencies, still haven’t submitted the required records.
Going forward, any complaint against an officer has to be submitted to POST within 48 hours. Since last July, POST has received 695 complaints from 97 agencies, but POST isn’t staffed to handle them or organize any of the complaints as of now.
At present, not all police departments maintain their own misconduct databases. The departments that do have databases don’t store the data according to any uniform standard. It’s also not realistic to obtain all of this data by making public records requests — it would require making hundreds of requests, many appeals, and repeating this process on a regular basis since the databases are constantly being updated. Therefore, making all of this information available in a centralized public database will be a major step forward for police transparency.
I requested the data referenced in the WCVB story. I also requested information about an investigation of racist text messages and drug use by Lynn police officers from POST earlier in January. I haven’t received responses to either of those requests yet. The commission still does not have a records access officer listed on its website, so I had to send my requests to the executive director.
Brady List Project
As I mentioned in my first newsletter, I sent requests to all prosecutors’ offices in the state for Brady lists. These are lists of police officers with credibility problems that prosecutors might need to disclose to defendants in criminal cases. The name comes from the 1963 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.
You might remember that back in 2020, there was a flurry of reporting about Brady lists. Here in Massachusetts, WBUR and other local news organizations obtained and published several of them. I was curious if any of the lists have been updated since 2020 or if any of the prosecutors who said they didn’t maintain lists have started keeping them. I requested the lists and other related information from the attorney general’s office, the Massachusetts District Attorney’s Association, and all 11 district attorney’s offices.
For reference, here is how I worded my requests:
Pursuant to the Massachusetts Public Records Law (M.G.L. c.66, §10), I hereby request the following records:
The office’s Brady list, which refers to a list of law enforcement officers who have credibility issues or other concerns that might need to be disclosed to defendants in criminal cases
All Brady information, meaning all records concerning individual law enforcement officers that might need to be, or have been, disclosed to defendants in criminal cases
All communications with criminal defendants and/or defense counsel advising them of the existence of Brady information or an officer’s placement on a Brady list
All communications with police departments or individual officers regarding the existence or disclosure of Brady information or an officer’s placement, or potential placement, on a Brady list
I’ve heard back from most of the agencies. Let’s start with the ones that have made things easy.
Massachusetts District Attorney’s Association — The MDAA provided information it received from the State Police in October 2018. A letter from the State Police includes the names of state troopers “indicted either by state or federal authorities.” Also included was a list of state troopers who were “placed on suspension as a result of open internal investigations.”
Hampden District Attorney’s Office — The Hampden DAO did not maintain a Brady list in 2020, as reported by WBUR, but it has started one since then. It asked me to agree to an extension until February 22. I agreed on the conditions that it would provide the records on a rolling basis and that it would not charge any fees. On January 24, the office provided me with a copy of its list. The list only has the names of 53 police officers — no other information, such as the department employing each officer, was included. Presumably the records that the DAO provides in the future will include this information.
Middlesex District Attorney’s Office — The Middlesex DAO provided the most comprehensive set of records so far: a Brady list with the names of 169 police officers, a Brady policy, and more than 300 pages of Brady materials. It did not redact any information. The list has been updated since 2020, when it had 124 names, as reported by WBUR.
Now let’s move on to the agencies that have been less forthcoming.
Bristol District Attorney’s Office — The Bristol DAO does not have a Brady list, according to Assistant District Attorney Mary E. Lee.
Lee turned over some Brady materials, but she withheld records she said are related to pending criminal prosecutions, citing the Criminal Offender Record Information law. The CORI law protects some information about people charged with crimes — but I made an appeal to challenge the law’s applicability, pointing to a 2020 Supreme Judicial Court decision that the law does not allow police departments to withhold mugshots and arrest reports related to cops and other public officials charged with crimes.
Lee also redacted identifying information about many of the officers under the privacy exemption to the public records law, and the reason she gave for doing so was truly bizarre:
The redacted records demonstrate the various types of Brady materials and how this office addresses such matters, without undermining the personal privacy interests of any individuals. Such individual interests should be accommodated as fully as possible, particularly if no criminal activity is alleged, to provide such officers with the same privacy rights of officers who are charged with crimes and are protected under the CORI statute.
As best as I can understand, Lee was saying that since the CORI law protects information about cops charged with crimes, the privacy exemption should protect information about cops who have not been charged with crimes. This makes absolutely no sense. In fact, the 2020 police reform law amended the privacy exemption to explicitly say that it “shall not apply to records related to a law enforcement misconduct investigation.” I challenged these redactions too.
Lee also said she redacted identifying information about businesses under the privacy exemption. I challenged these redactions by pointing out that the privacy exemption only applies to information about “a specifically named individual,” not information about businesses.
Lee refused to turn over communications with criminal defendants, saying these records are protected by the CORI law since they would identify the defendants. In my appeal, I said that any identifying information about the defendants could be redacted.
Lee also refused to provide communications with police departments and police officers, citing the deliberative-process exemption. This exemption allows government agencies to withhold records “relating to policy positions being developed by the agency,” but the exemption does not apply once the policies have been finalized. In my appeal, I pointed out that Lee did not specify whether any of the records were part of an ongoing policy-development process. The exemption also does “not apply to reasonably completed factual studies or reports,” so I pointed out that Lee did not give enough information about the records to show that the exemption would apply even if they were part of an ongoing policy-development process.
I found Lee’s response bewildering, so I asked the supervisor of public records to order her to list all the records she is withholding and create an exemption log for all the redacted records. I also asked the supervisor to consider conducting an in camera inspection, which is legal mumbo jumbo for when the supervisor reviews records to determine whether an agency’s decision to withhold or redact was appropriate.
Essex District Attorney’s Office — The Essex DAO did not keep a Brady list in 2020, as reported by WBUR, but it has since begun to do so. It provided a list of police officers who have been charged with crimes, but it redacted the names of the officers, citing the CORI law. The DAO also provided more than 400 pages of records about the officers, a Brady policy, and a letter it sent to police departments in 2021. Again, I made an appeal to challenge the invocation of the CORI law.
Norfolk District Attorney’s Office — The Norfolk DAO provided a Brady list on January 25. The list had just been updated the previous day, according to Assistant District Attorney Meagen K. Monahan. However, Monahan said that before she would provide records related to the 64 listed police officers and emails with police departments, I would need to pay a fee of $1,450. She stated that it would take 62 hours of work, mostly to review the records for information to redact. “Due to the volume of materials and the other responsibilities of this office, I estimate this request would take at least 15 weeks to fulfill,” she added.
I filed an appeal to challenge this fee. The main point I raised was that Monahan did not specify any exemptions, making it unclear what she intends to redact. Agencies need to state up front the exemptions on which they are relying and why those exemptions are applicable in order to charge fees. (The public records law also does not allow agencies to charge fees for redacting records unless the redactions are mandated by law; many exemptions are only discretionary.)
I also questioned why Monahan was charging $25 per hour to search for and scan the records. Agencies are allowed to charge up to $25 when necessary, but they can’t charge more for each task than the hourly rate of the lowest-paid employee capable of doing that task. I figured there might be a lower-paid employee who could do basic tasks like scanning.
Northwestern District Attorney’s Office — The Northwestern DAO did not provide a Brady list, but it did turn over letters about Brady cops that are used to make disclosures to criminal defendants. Assistant District Attorney Cynthia Von Flatern redacted the names of all the police officers, citing the Criminal Offender Records Information law and the privacy exemption. I filed an appeal challenging the applicability of CORI to the officers charged with crimes. I also pointed out that the documents make it clear that many of the officers were not charged with crimes at all — they were only found to have violated department policies. I also challenged the use of the privacy exemption because Von Flatern did not even try to explain how it was applicable.
Plymouth District Attorney’s Office — The Plymouth DAO refused to provide a Brady list. “We are currently working with the newly established POST Commission to determine what records are public records. We have requested from them a ruling as to what is public information,” said Assistant District Attorney Patrick Nevins. I filed an appeal challenging this response on the grounds that Nevins did not cite any exemptions.
Nevins did confirm that the DAO has records about the officers on the Brady list, but he said it would be difficult to provide all of them because they are stored in boxes and the DAO’s case-management system does not list all of the cases involving each officer. “Our office does have available a copy of a template used by [assistant district attorneys] to make Brady disclosures. However, we do not have a central depository for each specific Brady notice of disclosure made,” he said. He explained that tracking down all the disclosures would take 175 hours and that the DAO would charge a fee of $2,982.24. He also said that to provide letters about Brady cops that have been provided to criminal defendants, it would take an additional 175 hours and would cost another $2,982.24. I asked Nevins to clarify whether he meant that the DAO has filled-out templates for each officer or only a blank template. I’m waiting for his answer before I determine my next course of action.
Nevins also said the DAO has “letter(s) that were sent to the Chiefs of Police in Plymouth County outlining Brady obligations,” but he did not provide these for some reason. I asked him to send them as soon as possible, but I haven’t heard back yet.
Worcester District Attorney’s Office — The Worcester DAO does not maintain a Brady list, according to records access officer Mark Relation. In fact, the DAO has a page on its website that helpfully explains why creating a Brady list would be “impractical,” “misleading,” and would violate the due-process rights of the disreputable cops who earned spots on the list.
Of course, the DAO insists that it does disclose information about Brady cops to people charged with crimes when it is required to do so. But it refused to provide any of this information to me. According to Relation, “that category of materials constitutes discovery provided to defense counsel” and “protective orders may be applicable.” (Discovery is the process in criminal cases and lawsuits where the opposing parties share evidence and documents with each other in preparation for trial.) I filed an appeal, pointing out that Relation did not identify any specific, relevant protective orders. I also pointed out that protective orders only prevent a party from disseminating information obtained through discovery, but Relation said the records were “provided to defense counsel” (emphasis added).
Other Agencies — So far, I have not received responses from the attorney general’s office or the Berkshire, Cape and Islands, and Suffolk district attorney’s offices.
Boston Police Sergeant Shana Cottone Internal Affairs Records — Shana Cottone, a Boston police sergeant, is the leader of an anti-vaccine group that has been plaguing Mayor Michelle Wu and was recently put on leave from the police department. I requested her internal affairs records, and the city provided them. Read them here.
State Police Use-of-Force Committee Reports — The Massachusetts State Police Department’s use-of-force committee prepares annual reports with statistics showing how often state troopers use force each year. On January 4, I sent a request for these reports to the State Police email address listed on the state government’s website. 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 an online form. The form requires a phone number and address, information an agency cannot require a person to divulge. In fact, an agency can’t require the use of an online form at all — the public records law and related state regulations specifically say that agencies must accept requests via email. However, 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 was not particularly surprised when the State Police never responded to my emailed request.
I filed an appeal on January 25. The public records division contacted the State Police about my appeal, and State Police lawyer Allison Mondello 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. I wrote back, asking the supervisor of public records to order the State Police to change their unlawful practice of requiring that requests be submitted through the online portal. This is the kind of asinine bullshit that besets those who make records requests in Massachusetts.
Tracking Police Misconduct With Media Reports
As I discussed in my first newsletter, I’m building a database of all allegations of misconduct by Massachusetts police officers that are reported by the news media in 2022.
I have one older entry that was updated with additional information and a different link:
Boston Globe: Boston police sergeant who heads anti-vaccine group violates city vaccine mandate by refusing to show proof of vaccination at two pizzerias and allegedly steals bottle of water from one
And I have several new entries:
MassLive: Fall River police officer fired for filing a false police report in 2019 to protect another officer accused of brutality
MassLive: Needham police officer facing federal securities-fraud charges after allegedly receiving kickbacks from friends for insider information
Patriot-Ledger: Lawsuit by family of man killed in assault after 2019 concert names police officer and police chief; alleges officer who was working detail that evening left early and other officers intimidated witnesses due to assailant’s family ties to police department
Telegram & Gazette: Worcester reaches $20,000 settlement with Liberian immigrant who in 2019 was falsely arrested by off-duty police officer working detail at Walmart
You might wonder if there’s any point to tracking media reports of police misconduct while the POST Commission is building a comprehensive database. I think it will be worthwhile to compare news coverage to the POST database when it’s finished. POST might miss some incidents — for example, many police departments do not automatically open investigations when officers are sued, and the police reform law only mandates the collection of information about policy violations and criminal charges.
I’m also interested in getting an idea of what percentage of police misconduct makes the news. This seems especially worthy of attention as local media continue to be hollowed out by layoffs, newsroom closings, and consolidations.
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That’s all for now. As I mentioned in my letter on the 2022 election, I will eventually be writing about Secretary of the Commonwealth William Galvin (who is up for reelection) and Attorney General Maura Healey (who is running for governor). However, I just started reading up on some bills before the legislature that would update the public records law, and I might get around to writing about those first. As always, please subscribe and share if the issue of public records is important to you.
Also, if you write about any of the records that I publish, please let me know so that I can share your work. Feel free to reach out if you have any questions or need to see any of my request-related correspondence that I haven’t published.