Last year, the Middlesex District Attorney's Office became the focus of a scandal after the murder of Jennifer Martel by Jared Remy. Remy had been arrested for attacking Martel just two days before the murder, but the district attorney's office made no attempt to have him held in jail pending the trial despite his long history of domestic violence. Middlesex District Attorney Marian Ryan initially said the DA's office would conduct an internal review of its policies for handling domestic violence cases, but later ordered an outside investigation after pressure from the Massachusetts Bar Association and others. Ryan released the findings from the investigation in May, after Remy pled guilty to murder.
Last Friday, The Boston Globe reported that the 16 pages that were previously released were actually incomplete. After receiving a tip, they made a public records request for the entire report. As it turns out, the document Ryan released in May was missing 19 pages, which included summaries of interviews with her staff and contained some new information about the case.
According to the Globe:
Ryan’s office also withheld the report’s table of contents, making it impossible for the public to know that portions of the review were excluded. Late Thursday afternoon, Ryan’s office released the missing pages to the Globe following a public records request for the document.
Ryan said that when she released the findings in May, she was under no obligation to provide the employee statements and other information that was excluded.
When I elect to release something that I haven’t been compelled to release, it’s fully in my discretion to release what I’m going to release,” Ryan said in a telephone interview Thursday night.
She said she withheld the summary of interviews with employees, who are identified in the report only by title, because she had told them to speak openly to the lawyers conducting the review.
“I asked members of my staff to speak freely, to speak candidly, to have no fears of any repercussions about anything they said,” she said, adding that she did not want to violate their trust.
The state’s open records law makes it clear that a government agency that withholds parts of a requested public document must state what was withheld and why, said Robert Bertsche, chair of the media law group at Prince Lobel Tye in Boston.
That transparency is crucial so that the public has the opportunity to challenge an agency’s decision to withhold information, he said.
“The public records law is not supposed to be a game of cat and mouse,” Bertsche said. “When [public agencies] withhold a document and don’t tell you, that’s really a failure of the system, and that’s when we stop trusting government.”
Fox 25 reporter Sharman Sacchetti interviewed Ryan about the Globe story.
“If you're telling the public that you're releasing the report, but you're really not releasing the whole report, doesn't that undermine public confidence?” asked Sacchetti.
Ryan defended herself, noting that she only said she was releasing the "findings" of the report (which is indeed the word she used in her press release at the time), but this answer seems disingenuous. When you release a document to the public without explaining that it's incomplete, you're giving the impression that you're releasing the whole thing.
Ryan has argued that she didn't violate the state's public records law as the Globe suggests in their article because the information she released in May was disclosed voluntarily and not in response to any particular public records request. She's probably right that her actions in this case don't technically violate the law, but it's clear that she violated the law's spirit by acting in a very misleading way.
Ryan's actions were especially misleading in this case because the Waltham News Tribune had already made a public records request for the entire report prior to Jared Remy's guilty plea. Ryan refused to release the report at the time in order to prevent it from prejudicing Remy's right to a fair trial. On appeal, the state Supervisor of Records sided with Ryan, but said the report could be released after the case was closed.
Had Ryan simply said in May that she had only released part of the report, it's likely that the Globe and other news organizations would have made records requests for the whole thing much sooner.
Of course, considering that this report is a public record and is tied to a case of tremendous public interest, Ryan should have just done the transparent thing and released the entire report without waiting to receive public records requests for it in the first place.
Ryan, who was appointed by the governor after her predecessor resigned, is up for her first election this year. Michael Sullivan, who is running against her and, said on Facebook that her decision not to release the whole report was "deliberate and arrogant." Perhaps if Ryan hopes to keep her job, she should embrace transparency for her own sake.