State Secrets

There aren’t any public records—only records the Secretary of the Commonwealth hasn’t gotten around to declaring exempt yet

 

 

The secretary of the Commonwealth’s office recently used me to set a precedent exempting all police reports from the public records law. The next time anyone attempts to obtain such a report in Massachusetts that they personally filed, they could be denied as well.

 

Dianne Kane-McGunigle contacted me because she was having a hard time getting a copy of an incident report she filed with the Quincy Police Department in September 2014. She was trying to obtain documentation of an episode in which she caught her neighbor peeing in public, and claimed police responded to her by aggressively insinuating that she broke the law by recording the urinator. Kane-McGunigle wanted the police report that she filed to corroborate her story, and knowing that I am well-versed in navigating the state’s dysfunctional records law, she reached out to me for help.

 

Bottom line: I requested the same police report and was denied. The reason Quincy police gave for the denial was that since I identified the person who filed the report in my request, they could not provide the report without confirming her identity. This logic makes no sense because they confirmed her identity when they admitted the records existed.

 

In response, I filed an administrative appeal with the supervisor of records, a state employee who works under the secretary of the Commonwealth and has oversight of the public records law. He issued two especially disappointing decisions; so disappointing, in fact, that they set a dangerous new precedent.

 

Shockingly, at least for those unfamiliar with the handiwork of Supervisor of Records Shawn Williams, the denial was upheld, with Williams writing, “In your April 27 response to Ms. Shaffer you explained that the [Quincy Police] Department is withholding the responsive records as disclosure would identify the ‘voluntary witness and complainant.’ In her request Ms. Shaffer identified the complainant; therefore it is not possible for the Department to release the responsive record without confirming the involvement of that specifically identified person and jeopardizing future witness cooperation.”

 

I then asked Williams to revisit the case, and provided a note from Kane-McGunigle requesting that the report be made public. The supervisor reopened the appeal, but then issued a second denial finding, “The fact that the identified individual consented to the release of the record does not afford any greater right of access to the requested information because the Public Records Law does not distinguish between requesters … As a result, the individual's consent to release the record has no bearing on the public status of the record.”

 

This determination negatively impacts the ability of anyone to get a police report in Massachusetts. I was blocked from obtaining records because I knew the identity of the complainant and, according to the ruling, the complainant has the same level of access to the report that I do, which is none. Additionally, since the ruling states that everyone has this same level of access, no one can obtain this particular police report.

 

The precedent set here is disastrous. Now if anyone knows the identity of a complainant or a voluntary witness in Mass—including complainants and witnesses themselves—police reports are not subject to disclosure. The supervisor of records has effectively punched a giant new hole in the already decrepit Massachusetts public records law. At best, people who file police reports or are voluntary witnesses no longer have the right to obtain copies of their reports. At worst, virtually all police reports are now exempt from disclosure under the public records law.

 

Gauging the potential wider impact of this ruling, the next time an insurance company requests a police crash report for an incident involving one of their customers, they could be denied access because they are aware of their customer’s involvement. Ostensibly, the only police reports still available to the public are those generated without any voluntary witness or complainant.

 

To test the impact of this seemingly critical if not unfortunate ruling, I went with Kane-McGunigle to Quincy Police Department headquarters to document on camera her making a request for the report in question. QPD officers did indeed refuse to give her a copy, and cited the aforementioned supervisor’s decision, thus confirming the disastrous impact of this ruling. We have now appealed the denial, giving Williams one last chance to get this right, and we also asked the supervisor to comment on the damage his determination might inflict on the accessibility of police records. His office did not respond.

 

All things considered, the supervisor of records needs to be removed regardless of whether the current push for an update to the public records law passes. The Boston Globe even acknowledged in an editorial that the supervisor is a major part of the problem. Meanwhile, outrageous previous rulings that bothered the Globe pale in comparison to this latest ruling.

 

The ruling that the Globe is suing over allowed police to withhold officers’ drunken driving records by citing an exemption related to Criminal Offender Record Information protections. That ruling limited public access to police records, but only when the records related to criminal charges. The supervisor has now finished the job of making virtually all police records exempt.

 

Secretary of the Commonwealth William Galvin’s office is the number one contributor to dysfunction in the current system. If the current pattern continues, Galvin’s legacy will be the indefensible rulings made by his appointed supervisor of records, the lot of which threaten to take Commonwealth public records law off life support, and render it dead once and for all.

Update 12/18/2015

The Supervisor of Records has ruled against Kane in her appeal. Police reports are now exempt from the records law.