Last Monday, a Massachusetts police officer named Michael J. Motyka was indicted for assault and battery with a dangerous weapon over an alleged beating that was caught on camera in March.
But in the months since the alleged beating occurred, the public has yet to see the video that implicated the Worcester police officer.
Even after prosecutors were ordered to turn the video over to us after we made a public records request.
But the Massachusetts public records law is weak and frequently abused.
Prosecutors say Motyka beat a handcuffed prisoner, Gerald Jones, in a holding cell while making derogatory comments about the victim’s “black skin.”
The city has confirmed that several police officers witnessed the beating, although not a single officer intervened or reported it.
Three of those officers have resigned, but the city has refused to release their names. The fourth Massachusetts cop, Jeffrey B. Toney, was put on paid leave in April, although he is no longer on leave and still works for the city.
Motyka was still on paid leave earlier this week even though state law allows police officers who have been indicted to be put on unpaid leave, according to the Telegram & Gazette.
Jones, the alleged victim, received a $225,000 settlement from the city in July, although the city did not admit any wrongdoing.
Public records runaround
We have been trying for months to get a copy of the video, which is a public record, but have been constantly thwarted by Massachusetts’ weak freedom of information law.
We first sent a public records request for the video to the Worcester District Attorney’s Office, which was prosecuting the case at the time, in April, shortly after Motyka was arrested. The case has since been turned over to the Massachusetts Attorney General’s Office.
A few days after we sent the request, Assistant District Attorney Christopher P. Hodgens sent a letter refusing to turn over the video, citing the investigatory exemption to the Massachusetts public records law.
This exemption allows law enforcement agencies to withhold records related to ongoing investigations, but they must first show that releasing the records would negatively impact their investigation.
Hodgens’ letter did not provide any reason why releasing the video would hamper the investigation of the beating incident.
In response, we filed an administrative appeal with the Supervisor of Records, a state employee who works under the Massachusetts Secretary of the Commonwealth and has oversight of the public records law.
In July, the supervisor’s office issued a ruling, declaring that the district attorney’s office had failed to provide an adequate reason for refusing to turn over the video and ordered them to turn it over in 10 days.
But instead of complying with the order, Hodgens, the assistant district attorney, waited 15 days before sending another letter denying the request.
The letter did not cite any exemptions, as required by state law, but instead simply stated that the Massachusetts Attorney General’s Office was now prosecuting the case and that we should ask them about the video instead.
We again sent an appeal to the Supervisor of Records, which has yet to be resolved.
We also sent a public records request to the Attorney General’s Office for the video.
We soon received a letter from Assistant Attorney General Lorraine A. G. Tarrow, who denied the request, citing the investigatory exemption – the same exemption cited by the district attorney’s office.
And like Hodgens, Tarrow failed to provide a reason why the investigatory exemption applies to the video.
We sent yet another appeal to the Supervisor of Records, which also has yet to be resolved.
The Supervisor of Records can issue orders to government agencies about the public records law, but they do not have the power to enforce the law.
That duty falls on prosecutors, particularly the Attorney General’s Office, who can sue agencies to force them to comply and file criminal charges against individual public officials who have violated the law. Violating the public records law is a crime punishable by up to a year in jail.
However, it is extremely rare for the Supervisor of Records to turn over cases to prosecutors, and the Attorney General’s Office told The Boston Globe earlier this year that they could not recall a single instance where they prosecuted someone for breaking the law.
Furthermore, given that the Attorney General’s Office is one of the agencies that has refused to turn over the video, it’s highly unlikely we will see it until the case goes to trial.
The only other option we have is to sue the district attorney’s office or Attorney General’s Office, but it’s not a very realistic one. Even if we won a public records lawsuit, we would not be able to recoup attorney’s fees under state law, so we would lose any money we spent fighting the case.
Under the previous attorney general, Martha Coakley, the public records law went completely unenforced for about five years. The new attorney general, Maura Healey, who took office earlier this year, promised she would do more to enforce the law than her predecessor.
But it’s hard to take her promise seriously when even her office won’t follow the law.