The proposed update to the public records law approved by the Massachusetts House is worse than useless.Read More
The Gloucester police didn't post or provide an email address to receive a public records request, so now they'll have to process them through Facebook.Read More
Boston police officers once again failed to wear their badges or identify themselves at a public event, but this time one of the 23 top ranking department officials called the department’s “command staff” was on hand to step in. Sadly, when Deputy Superintendent William Ridge did involve himself in the incident, he joined in with his officers in their unlawful behavior and took it a step further by trying to intimidate me.
On July 4, the Boston police deployed outside of the Esplanade area where Boston’s Independence Day celebration is held. I was there to document the police checkpoints at the Esplanade itself, but on my way I noticed four Boston police officers standing in a doorway. Two of the rifle-toting cops were not displaying their badges, so I asked them to identify themselves. They refused. I then asked all of the officers to comply with the Massachusetts police ID card law that requires municipal police officers to carry and show a police ID upon lawful request. Three out of four of the officers refused and the fourth would only show his card to me off camera.Read More
Lieutenant Michael McCarthy, the Boston police official who handles public records requests, and the Boston Police Department are serial violators of the Massachusetts public records law, which is supposed to allow anyone to review government documents in a timely manner. Any violation of the public records law is a crime, punishable by fines and up to a year in jail, but thus far the Commonwealth has shown no interest in bringing criminals like McCarthy to justice. The Massachusetts public record law is one of -- if not the -- weakest Freedom of Information laws in the nation. Part of the state's dismal reputation is due to the complete failure of any prosecuting body to uphold the law. The law, as weak as it is, actually does have a section which specifies that any violation of any provision of the law a misdemeanor.
This year I've had seven appeals opened by the Supervisor of Records regarding the Boston Police Department’s failures to follow the public records law, and since the beginning of the year there have been 19 total appeals opened by the Supervisor of Records regarding the Boston police.
On July 1, the Supervisor of Records closed one of my appeals which dates back to a request I made on January 7. After a mere six months, the supervisor ordered the Boston police to respond to my request within ten more days. This makes a mockery of the provision in the law requiring departments to respond as soon as possible and within ten days.
The supervisor's order showed that behind the scenes, the Boston police had been misleading his office. According to the supervisor's order, “An attorney on my staff contacted you [i.e., Michael McCarthy] a number of times and was informed that Ms. Shaffer would receive a written, good faith estimate for the cost of providing her with the requested records.”
Ten days came and went with no response from the Boston police, so I requested that the supervisor turn the case over to the attorney general's office for a criminal prosecution. Despite the obviously easy to prove criminal offense, there will almost certainly be no penalty suffered by the Boston police for their noncompliance. The attorney general's office recently told The Boston Globe that they cant recall ever enforcing the the criminal aspect of the law.
Even when McCarthy and the Boston police refused to communicate with the supervisor's office about an outstanding request, nothing was done to enforce the law. On another one of my appeals, The supervisor wrote:
Despite contact by my office, including correspondence sent on at least seven occasions since April 2015, the Department has failed to comply with its mandatory obligations under the Public Records Law to respond to a request for public records. Accordingly, whereas the Department has not overcome the presumption that the requested records are public, the Department is hereby ordered, within ten (10) day of this order, to provide Ms. Shaffer with the requested records.
After this order, the Boston police finally turned over the requested records, but took more than 10 days. The records revealed a previously undisclosed $1800 spent by the taxpayers of Boston to send two police officers to hang out with Boston Mayor Marty Walsh in California while he meeting with the United States Olympics Committee and Boston 2024 to secure a chance to bid to host the 2024 Olympics.
In yet another order, the supervisor wrote:
Despite contact by my office, including correspondence sent on at least five occasions since April 2015, the Department has failed to comply with its mandatory obligations under the Public Records Law to respond to a request for public records. Accordingly, whereas the Department has not overcome the presumption that the requested records are public, the Department is hereby ordered, within ten (10) day of this order, to provide Ms. Shaffer with the requested records.
The department did not comply with this order either, so I asked again for McCarthy to be prosecuted.
One reason there are never prosecutions is that the Supervisor of Records office acts as a gatekeeper. The supervisor has oversight over the public records law and his office has discretion to escalate a records appeal to the attorney general’s office for enforcement. This is a problem because the supervisor does maddening things like ruling, “That whereas the substantive response was provided on the eleventh day... the Department acted in compliance with the spirit of the law.” Would you ever tell a judge that you were "driving within the spirit of the law" because you were only driving a few miles over the speed limit? Ruling that criminal violations of the public records law is in "the spirit of the law" is a bigger indictment of the Commonwealth's lack of transparency than any weak points the existing law has.
Unsurprisingly, given the coddling of criminals like McCarthy, one of my most recent requests sent to the Boston police was met with the department's standard email warning, letting me know they don't intend to follow the law this time either: "Please be advised that we research each request in the order it was received, and it may take longer than ten days to be fulfilled. If your request requires a substantial amount of research, reviewing and redacting, fulfilling the request will take a significant amount of time. Please plan accordingly" (emphasis added). Taking longer than ten days is a misdemeanor, but the Boston police take such a cavalier attitude toward the law that they're willing to flout their intent to violate the law in writing.
Criminals like McCarthy correctly assume they are above the law, and no an update to the law can fix these issue unless the Supervisor of Records and attorney general's office decide to do their jobs. I support reforming the law, but it won't matter if the law continues to go unenforced. When one of our appeals was sent to Attorney General Maura Healey -- the first time in five years any appeal reached the attorney general's office -- she wrung her hands and complained about the law's "lack of teeth." But giving the law more teeth won't give Healey a spine.
After mishandling a public records request, the Abington Police Department did something unusual – they apologized.
Massachusetts has a reputation for having one of the weakest, most poorly enforced Freedom of Information laws in the country, something anyone who frequently makes public records requests in the Commonwealth can tell you is well deserved.
It's all too common for government agencies to ignore the timeliness requirement of the law, wrongfully deny the release of records, and otherwise violate the letter and spirit of the law. On the other hand, it's rare for government agencies to apologize when they're caught or to take steps to ensure it won't happen again.
But that's exactly what the Abington police did after being told by the Supervisor of Records, the state official responsible for oversight of the public records law, that they failed to meet their burden under the law with respect to one of our records requests.
We requested records related to the 1998 traffic stop of Michael Hyde, which led to an important legal precedent in Massachusetts regarding the right to record police officers. We also requested training and policy documents related to the right to record police.
The department did not send a response until 21 days after the request was filed even though the public records law requires compliance within 10 days.
The department's response denied the request, but provided very little explanation. Their records custodian JoAnn Gillis simply provided a form with check boxes on it and marked off two boxes with an "x." One of the marked off boxes was labeled "Massachusetts General Law Exemption B & F," referring to the "personnel" and "investigatory" exemptions to the public records law. The second box was labeled "Other" and was filled in with "Internal Affairs records from 1998 – Not available."
The public records law requires government agencies to explain why an exemption applies to a record in question, which the Supervisor of Records said the department failed to do.
The supervisor ordered the department to provide a new response within 10 days and to provide training on the law to its employees.
Three days after the supervisor's order was issued, Gillis provided the records related to Michael Hyde that she initially claimed weren't available at no charge. She also stated that the department did not have any relevant policy or training documents.
After I reached out to the department for an explanation about the initial handling of our request, Deputy Chief Christopher J. Cutter provided his cellphone number and encouraged me to call him even though it was his weekend off. I didn't get a chance to call at that point, but I received the following email on Monday:
On behalf of Chief [David G.] Majenski and myself we apologize for the actions of our records clerk Mrs. Gillis. She is charged with the responsibility to handle all our requests for public records and usually she does this with no issues, however in your case she failed to properly follow the training she has been provided.
Upon seeing the letter from the Supervisor of Public Records both the Chief and I were taken aback. I immediately began to look into your specific case and discussed it with our clerk Thursday afternoon. Prior to this notice from the Supervisor, Mrs. Gillis never choose to ask the Chief or I if we had an IA file and I can't answer as to why she failed to provide you with more details in regards to the exemptions she is quoted as pertaining to your additional requests. This would all be contrary to her training and contrary to our practice.
There is also no excuse as to why she took so long to respond back to your request. Again, this is contrary to her training and contrary to what the Chief expects of his employees.
When Chief Majenski came into work Friday morning he immediately reviewed the circumstances around your request and informed Mrs. Gillis that should she perform in this way in the future she will be subject to termination. As well the Chief has instituted a new procedure with her that when she denies any public records request, that I am provided with a copy of that denial packet for a secondary review. I also have scheduled mandatory re-training to be conducted by the Commonwealth for her, the Chief's administrative assistant, a part-time records clerk and myself for later this month.
In closing we extend our apologies for our department's failure to properly respond to your request and I apologize for your inconvenience our oversight has caused you. Thank you for bringing this issue to our attention as it provides us with the opportunity to make sure this doesn't happen again.
In a follow-up phone conversation, Cutter addressed the issue of the form letter that Gillis used to deny the request.
Cutter said he had "no problem" with using a form letter, but said it should include a "free-flowing narrative section so you can explain why you're giving the exemption." He also said he would look into the issue in more detail soon.
The experience does not change the need for public records reform here in Massachusetts, but it's still encouraging to see that some public officials take the law seriously.
Earlier this month, we made the news after the Massachusetts State Police won an award for government secrecy in part because of how they responded to one of our records requests, but people who saw that news didn't get the full story. On June 6, Investigators Reporters & Editors, Inc. (IRE) gave the State Police its third annual “Golden Padlock Award,” naming them the most secretive government agency in the United States.
According to IRE:
The Massachusetts State Police habitually go to extraordinary lengths to thwart public records requests, protect law enforcement officers and public officials who violate the law and block efforts to scrutinize how the department performs its duties. It normally takes months or longer to respond to news media FOI requests. Requests for basic documents routinely produce refusals, large portions of blacked out documents or demands for tens of thousands of dollars in unjustified fees.
IRE cited the State Police's absurd response to one of our records requests as one of the reasons for the award.
After we asked the State Police for the internal affairs records of 49 state troopers last year, State Police attorney Jaclyn Zawada told us that simply providing us with a fee estimate for the records was too burdensome. Zawada said that the State Police would not provide us with a fee estimate unless we first paid a $710.50 “non-refundable research fee” so they could research how much the fee would be.
The State Police's attempt at charging a “research fee” to produce a fee estimate was mentioned by IRE, but there's much more to the story.
We filed an administrative appeal with the Supervisor of Records, who later told the State Police they could not charge a “research fee” and ordered them to provide a fee estimate within 10 days.
Instead of complying with the order, Zawada waited 21 days before finally providing a fee estimate. She said the State Police would charge $9,236.50 for digital copies of the records or $15,876 for paper copies.
Zawada initially claimed that it would take 24 and a half hours to do the research necessary to provide a fee estimate, but the letter she sent indicated that she only spent a few seconds doing a simple multiplication problem to arrive at the estimated fee.
Instead of basing the estimate on the actual number of pages and the actual amount of time necessary to prepare the records, Zawada simply took a fee estimate for the internal affairs records for one of the state troopers and multiplied it by 49.
We have again made an appealed to the Supervisor of Records for a number of reasons.
First, we believe government agencies have an obligation to make fee estimates as accurate as possible and should not use shortcuts that may significantly inflate the estimate.
When Zawada initially demanded that we pay a “research fee,” she claimed that “[d]rafting a good faith estimate... would require first a considerable amount of coordination with the IA section and many hours of research,” however, she did not actually do any of this work to prepare the fee estimate. When she finally sent the fee estimate, she noted that the State Police have the ability to provide a more accurate estimate, but would not do so.
Zawada seemed to blame the State Police's own hard-to-use records keeping system for her refusal to provide a more accurate estimate. “To generate a more precise estimate, the Department would conduct a computer search of IA Pro [a piece of software used for tracking information about state troopers] for a member’s history, identify each responsive file number, locate each file, and pull each file from the file room in order to determine the actual number of responsive files and approximate number of responsive pages,” she explained.
The State Police do not appear to be acting in good faith. By first telling us they would need to do hours of work to generate a fee estimate, then telling us they didn't actually need to do the work after all, they simply seem to be trying to stonewall our records request for as long as possible.
In a follow-up, Zawada defended herself by saying she isn't obligated to provide accurate fee estimates. She also claimed that when she attempted to charge us a “research fee,” it was really just a “courtesy” to help us “generate a more precise estimate.”
Secondly, the state trooper whose file Zawada used to generate the fee estimate was Walter Baptiste. According to a document we obtained from the State Police, Baptiste received the most complaints of any state trooper during the four year period between October 2010 to September 2014.
In her follow-up, Zawada noted that complaints only make up part of a state trooper's internal affairs file, but it still seems likely that a state trooper with an above average number of complaints is likely to have a larger than average internal affairs file.
We identified several other issues with the fee estimate, all of which we have raised with the Supervisor of Records. We hope that when the matter is finally resolved, the supervisor will order the State Police to provide a lower fee estimate that more accurately represents the actual cost of providing the records.
The saga of George Thompson, the Fall River man who was arrested for recording a police officer, is emblematic of America's tiered justice system, where ordinary people are punished just for exercising their rights, but powerful people like police officers face no repercussions whatsoever even when the brazenly break the law.
George Thompson was arrested by Fall River police officer Thomas Barboza in January, 2014 after he used his iPhone to record the officer even though recording police is protected by the First Amendment. While Thompson was still facing wiretapping and resisting arrest charges, a police department employee wiped his phone, destroying the video and all other data on it. The police department tried to blame Thompson for deleting the video, claiming without evidence that he might have used a cloud service to do it, until a company they hired to examine the phone determined a police employee had done it.Read More
In a bizarre incident Wednesday, Lynn police arrested George Cross, 40, for expressing himself too closely to Brickett Elementary School. Cross was charged with loitering within 1,000 feet of a school and causing a disturbance at a school after he was spotted wearing a stormtrooper costume from the Star Wars franchise. "He was arrested because he was disturbing the school," Lynn Police Lieutenant Rick Donnelly said. Donnelly said students weren't allowed to leave the building and parents weren't allowed to enter to pick up their children because of the "disturbance" caused by Cross.
"It could've been a tragedy," Donnelly said, but noted that Cross was only carrying a plastic, toy gun.
Cross told several news media outlets, including WHDH, that he was just walking around in the outfit to show his friends.
Donnelly was unsure if Cross had actually set foot on school grounds, saying the police report was unclear. Donnelly would not provide a copy of the report by email, saying it was against policy, but said he would ask to find out if he could send it.
The incident is reminiscent of last year, when Braintree police took a man to court for allegedly impersonating a police officer after he decorated his $80,000 Maserati to look like a character from the Transformers series. That case was laughed out of court by a clerk magistrate.
Update (6/6/2015): After our Maya Shaffer took several hours out of her day to travel to and from the Lynn Police Station, we were finally provided with a copy of the arrest report for George Cross that the department refused to provide by email.
The report states that police spoke with the principal of Brickett Elementary School before arresting Cross. The principal's name was redacted by the police department, but her name is Eileen P. Cole.
The reports states that Cole recognized that Cross was only carrying a plastic toy and not a real gun, but says she locked down the school because “you can never be too safe” and “because she was unaware of his intentions.”
The report notes that Cross was standing on a public sidewalk about 100 feet from the entrance to the school when police arrived and makes no mention of any allegations that he ever set foot on school grounds. The report also makes no mention of police asking Cross to leave the area before arresting him.
According to the report, Cross told police he was standing outside the school “because he thought the children would like the costume,” although he appears to dispute this considering his comments to news media after his arrest.
The day after a deadly police shooting in Boston, officials from the police department showed a surveillance video of the incident to a small group of handpicked community members during a closed-door meeting. Usaama Rahim, 26, died on Tuesday after a Boston police officer and FBI agent opened fire on him outside of a CVS in the Roslindale neighborhood.
During a press conference after yesterday's meeting, Boston police commissioner William Evans said that five members of the FBI and Boston Police Department approached Rahim to question him and were forced to shoot after he came at them with a knife. Evans said Rahim was hit three times.Read More
In a video provided to us, two Randolph police officers detained a man for recording them at the scene of a car accident on Memorial Day. During the detention, one of the officers shouts and throws a temper tantrum. The officers disarmed the man, who is a veteran, by gabbing his knife out of his pocket despite never giving any probable cause for the detention or for the seizure. The man, who asked us not to release his name for fear of reprisal, described himself as an, “Infantry marine going around on Memorial Day trying to at least uphold my oath to the Constitution.”Read More