Lieutenant Michael McCarthy, the Boston police official who handles public records requests, and the Boston Police Department are serial violators of the Massachusetts public records law, which is supposed to allow anyone to review government documents in a timely manner. Any violation of the public records law is a crime, punishable by fines and up to a year in jail, but thus far the Commonwealth has shown no interest in bringing criminals like McCarthy to justice. The Massachusetts public record law is one of -- if not the -- weakest Freedom of Information laws in the nation. Part of the state's dismal reputation is due to the complete failure of any prosecuting body to uphold the law. The law, as weak as it is, actually does have a section which specifies that any violation of any provision of the law a misdemeanor.
This year I've had seven appeals opened by the Supervisor of Records regarding the Boston Police Department’s failures to follow the public records law, and since the beginning of the year there have been 19 total appeals opened by the Supervisor of Records regarding the Boston police.
On July 1, the Supervisor of Records closed one of my appeals which dates back to a request I made on January 7. After a mere six months, the supervisor ordered the Boston police to respond to my request within ten more days. This makes a mockery of the provision in the law requiring departments to respond as soon as possible and within ten days.
The supervisor's order showed that behind the scenes, the Boston police had been misleading his office. According to the supervisor's order, “An attorney on my staff contacted you [i.e., Michael McCarthy] a number of times and was informed that Ms. Shaffer would receive a written, good faith estimate for the cost of providing her with the requested records.”
Ten days came and went with no response from the Boston police, so I requested that the supervisor turn the case over to the attorney general's office for a criminal prosecution. Despite the obviously easy to prove criminal offense, there will almost certainly be no penalty suffered by the Boston police for their noncompliance. The attorney general's office recently told The Boston Globe that they cant recall ever enforcing the the criminal aspect of the law.
Even when McCarthy and the Boston police refused to communicate with the supervisor's office about an outstanding request, nothing was done to enforce the law. On another one of my appeals, The supervisor wrote:
Despite contact by my office, including correspondence sent on at least seven occasions since April 2015, the Department has failed to comply with its mandatory obligations under the Public Records Law to respond to a request for public records. Accordingly, whereas the Department has not overcome the presumption that the requested records are public, the Department is hereby ordered, within ten (10) day of this order, to provide Ms. Shaffer with the requested records.
After this order, the Boston police finally turned over the requested records, but took more than 10 days. The records revealed a previously undisclosed $1800 spent by the taxpayers of Boston to send two police officers to hang out with Boston Mayor Marty Walsh in California while he meeting with the United States Olympics Committee and Boston 2024 to secure a chance to bid to host the 2024 Olympics.
In yet another order, the supervisor wrote:
Despite contact by my office, including correspondence sent on at least five occasions since April 2015, the Department has failed to comply with its mandatory obligations under the Public Records Law to respond to a request for public records. Accordingly, whereas the Department has not overcome the presumption that the requested records are public, the Department is hereby ordered, within ten (10) day of this order, to provide Ms. Shaffer with the requested records.
The department did not comply with this order either, so I asked again for McCarthy to be prosecuted.
One reason there are never prosecutions is that the Supervisor of Records office acts as a gatekeeper. The supervisor has oversight over the public records law and his office has discretion to escalate a records appeal to the attorney general’s office for enforcement. This is a problem because the supervisor does maddening things like ruling, “That whereas the substantive response was provided on the eleventh day... the Department acted in compliance with the spirit of the law.” Would you ever tell a judge that you were "driving within the spirit of the law" because you were only driving a few miles over the speed limit? Ruling that criminal violations of the public records law is in "the spirit of the law" is a bigger indictment of the Commonwealth's lack of transparency than any weak points the existing law has.
Unsurprisingly, given the coddling of criminals like McCarthy, one of my most recent requests sent to the Boston police was met with the department's standard email warning, letting me know they don't intend to follow the law this time either: "Please be advised that we research each request in the order it was received, and it may take longer than ten days to be fulfilled. If your request requires a substantial amount of research, reviewing and redacting, fulfilling the request will take a significant amount of time. Please plan accordingly" (emphasis added). Taking longer than ten days is a misdemeanor, but the Boston police take such a cavalier attitude toward the law that they're willing to flout their intent to violate the law in writing.
Criminals like McCarthy correctly assume they are above the law, and no an update to the law can fix these issue unless the Supervisor of Records and attorney general's office decide to do their jobs. I support reforming the law, but it won't matter if the law continues to go unenforced. When one of our appeals was sent to Attorney General Maura Healey -- the first time in five years any appeal reached the attorney general's office -- she wrung her hands and complained about the law's "lack of teeth." But giving the law more teeth won't give Healey a spine.