The Massachusetts legislature is working to update the state’s pathetic public records law, which consistently ranks as one of the worst freedom of information laws in the country. The last time the law was meaningfully updated was 1973, so any major update must be scrutinized in the context that it will likely be the only one for decades to come. While an update to the law is sorely needed, a bad bill—like the one approved by the House late last year—will leave Massachusetts crippled for the foreseeable future.
The House bill would allow records custodians to request an extensions for complying with records requests from the Secretary of the Commonwealth’s Office. It doesn’t cap the length of the extension and doesn’t require any party to notify the requester when an extension has been requested or granted. These extensions could be applied even after an agency accepts payment for the records.
Not only will this new loophole be abused, it already has been. Chicopee’s enterprising Associate City Solicitor Thomas Rooke managed to find a way to abuse it even though it’s not part of the law yet. His exploit is a portent of what is to come if we entrust the Supervisor of Records, the head of the Secretary of the Commonwealth’s Public Records Division, a with this new power to provide secret, open-ended extensions.
When I tried to get copies of Rooke’s emails, he refused to turn them over, then ignored an order from the supervisor for some time, then further stalled the process by requesting an extension. After his extension ran out, he simply never complied at all.
Rooke took a page from Hillary Clinton and used a nongovernmental email account to conduct official governmental business. He uses the same email address—firstname.lastname@example.org—for both his public job with the city and his private law practice. Emails sent to and by public officials are public records, so on June 11, I put in a records request for all of Rooke’s emails.
On June 19, Rooke responded: “Please be advised this is my personal email account and not a public document which contains attorney client privileged communications that are ‘work product’ and not subject to FOIA disclosure. Therefore, your request is denied and no documents/emails will be provided.”
I filed an appeal with the supervisor on June 19, asking that his office inspect Rooke’s emails to determine which of the emails are public records. I also requested that Rooke be ordered to use a public email address to conduct any city business and that his emails be transferred to the city and archived so that they will be properly available for review upon request. Lastly, I requested that the Attorney General's Office investigate all potential destruction of records arising from Rooke not following proper retention schedules for the correspondence received through the account and to determine if any criminal activity has occurred.
According to the guide published by Secretary of the Commonwealth William Galvin, “Whenever original public records are created outside the municipal offices, they shall be transferred on a regular and frequent basis to secure storage in the municipal building.” Clearly Rooke’s emails—which belong to the public, not him—ought to be maintained by the city, not his private law practice or Yahoo.
Despite the potential ongoing criminal destruction of records, the Supervisor did not rule on this matter until August 13—nearly two months after receiving my appeal. In his decision, he said that Rooke failed to show that his emails were exempt from disclosure and gave him 10 days to provide a new response to me. The Supervisor’s ruling ignored every other facet of my appeal, allowing Rooke to continue to unlawfully store public records.
Rooke missed the deadline set in the supervisor’s order because he was on vacation. I only know this because I asked the supervisor to turn the matter over to the Attorney General’s Office for prosecution. In response to my request for his prosecution, Rooke cc’d me, still from his email@example.com account, on a letter he had sent to the supervisor:
“I have just returned from a vacation and received your letter today date August 13, 2015, requesting a response within ten (10) days. I understand that the City Solicitor, Marshall Moriarty, has spoken to you about my absence from the Chicopee law department office due to my vacation.
Wherefore, I am requesting additional time to file an answer to you as requested in your letter of August 13, 2015. I will be out of my office tomorrow for the long Labor Day weekend and returning on September 8, 2015. Therefore, I am requesting ten (10) business days from September 8, 2015 to submit my response to you on or before Monday, September 21, 2015.”
On September 4, I again asked the Supervisor to turn this matter over to the AGO for prosecution. Stephen Shorey, a staff attorney for the records office, responded: “Thank you for this, I am currently reviewing the matter.”
Almost seven months have passed since I made my request, and I’ve yet to receive any response from Rooke or the supervisor since September 4. Filing for an extension has already bought Rooke and the city four months of extra time despite the supervisor’s order. If this sort of practice becomes enshrined in the law, the delays between requests and responses will only grow on average.
If Rooke hadn’t cc’d me on his email I wouldn’t have know that he was seeking an extension. The House update would allow this sort of behind the scenes negotiations that exclude requesters, and it’s coupled in the update with a 30-day restriction on filing most records lawsuits. The 30 days begin when a records officer denies a record or misses the deadline to provide the record. The secret extensions obscure when that 30-day window begins and makes it even more impossible to actually get the records you request.
For good measure, I reached out to Shorey on January 1 to help him start the year off right:
“So how's that review going? This order is only slightly more than four months overdue… Is the AGO prosecuting this yet?”
As expected, he has not responded.
Rooke’s abuse of an extension ought to be considered by the Senate especially since the House’s version of the records update bill would codify this practice. The state Senate will be putting forward their own version of the bill which, hopefully, will not have an extension loophole for violators like Rooke to exploit.