Supervisor of Records Shawn Williams has just created a brand new loophole for agencies looking to dodge records requests by ruling that they may illegally destroy records without fear of legal consequences.
Williams, who was appointed by Secretary of the Commonwealth William Galvin, is tasked with overseeing the public records law. He hears administrative appeals from people who have been denied records, and it’s his job to refer violations to the Attorney General’s Office so the law can be enforced. But in a recent written ruling that found the MBTA had destroyed a public record, Williams refused to escalate my appeal to the AGO because “there are no other responsive records available.”
Last year, I learned that the Massachusetts Bay Transportation Authority had unlawfully destroyed a surveillance video of a July 10 incident where Kevin Young was removed from an MBTA bus for wearing a belt with fake ammo. He was arrested shortly after by Boston police. After the arrest, both the Boston police and the MBTA Transit police issued press releases on their respective blogs. The MBTA’s post included a still picture from a video of Young on the bus.
On July 15, only five days after the incident, I made a public records request for a number of records, including the video. The MBTA missed the 10-day deadline to respond, but sent a response in early August.
The MBTA turned over a number of records, claiming they had provided every relevant record in their possession, but they did not include the video. I appealed to Galvin’s office on August 9, noting the discrepancy, pointing out that the picture on the MBTA’s blog had clearly been taken from a video.
Under the regulations set by Galvin’s own office, government agencies in Massachusetts are required to retain surveillance videos for a minimum of one month. Furthermore, any record used in a criminal investigation must be retained for at least six years after the case is closed (and certain crimes have even longer retention schedules). Both my request and the MBTA’s response fell within a month of Young’s arrest, as did my appeal.
According to the first written decision from Williams, MBTA attorney Susan Krupanski informed him that the MBTA deleted the video. Under state law, anyone who “destroys any public record” is guilty of a misdemeanor and “shall be punished by a fine of not less than ten nor more than five hundred dollars, or by imprisonment for not more than one year, or both.”
Sadly, this is Massachusetts, where our public records law is left unenforced. While it’s true that this deletion was a crime, Williams merely “advised” the MBTA to be sure they keep surveillance videos for a month in the future. Appeal closed. That’ll teach ‘em!
In response to this first ruling, I submitted a new appeal requesting that Galvin’s office refer the admitted crime to the AGO for prosecution. In a second written ruling, Williams took a page from Franz Kafka and declined to escalate my appeal to the AGO because the record I sought no longer exists.
I also tried to report the crime to the AGO myself, but a representative refused to take my report, claiming the AGO only investigates public record-related issues when they get a referral from Galvin’s office.
The lesson is clear: If you don’t want to release a record, just destroy it. No matter what public records law reforms state legislators dream up, the public records law will be useless as long as both Secretary of the Commonwealth William Galvin and Attorney General Maura Healey refuse to enforce the law.