Nearly a third of the official guide to public records requests published by the state of Massachusetts is given over to exemptions. That should give records requesters some idea of what they’re in for when tangling with the state’s agencies.
The state has developed a reputation for being a public records black hole that sucks in requests but never spits anything back out. MuckRock has a detailed post about one agency — the Medford Police Department — that appears, for the most part, to simply ignore requests it doesn’t feel like fulfilling.
MuckRock records show that the agency consistently fails to acknowledge and fulfill requests, sometimes for years and despite appeals to the Massachusetts Supervisor of Public Records. Its failure to comply with even the updated legislation highlights the shortcomings that remain in enforcement mechanisms for citizens entitled to government information.
This means the nonprofit is burning up man hours attempting to communicate with the MPD’s brick wall.
The oldest pending request, dating back to April 2013, had 112 email follow-ups that were sent to an officer who, at some point since initial submission, had left the department; these were followed by 14 fax follow-up messages to a currently valid office fax number.
If there’s an exemption that can be used, it will be used. Up until recently, the state had the worst public records laws in the nation. And it looks like they’re still the worst. This has allowed a state agency to claim a 63-year-old murder case investigation was still ongoing, despite the lead suspect having died years ago. In another case, the State Police took $180 from a requester and then refused to hand over the records requested.
The recently instituted public records law reforms don’t seem to be having much of an effect on state agency responsiveness. MuckRock is reporting law enforcement agencies continue to be the main offenders, upholding the proud police tradition of ignoring laws officers and officials don’t like.
This leads to insane, if not illegal, responses to records requests. Todd Wallack of the Boston Globe requested a photo of an officer and detective employed by the Boston Police Department. It rejected his request citing public records exemption f, which claimed the staff photos were “investigatory materials.” When Wallack challenged this determination, the BPD responded with ¯_(ツ)_/¯.
BPD couldn’t explain exactly how this exemption applied to the records in question. And so, the Supervisor of Public Records ordered the Department to fulfill the request. But with a lack of enforcement options from the SPR, it is still to be determined if the Department will comply or not.
The Supervisor of Public Records is an especially useless position, but one that meshes well with the state government’s antagonistic take on transparency. The SPR makes the initial call on disputed records requests, but cannot, as a matter of law, force an agency to turn over records if the SPR determines the government agency is in the wrong. All the SPR can do is kick it up to the Attorney General for another determination. This escalation is completely at the discretion of the SPR, who is required by law to escalate reports of non-compliance by state agencies.
In essence, state and local agencies are being told “wait til your dad gets home” when they lose appeals, but without any estimate on when dad will be home or if he’s even interested in handling these issues whenever the hell he actually gets back.
Here’s how the state suggests requesters deal with Massachusett’s effed-up public records laws. This comes directly from Secretary of State spokesperson Debra O’Malley.
“Sometimes requesters opt to sue because they might be more successful and it’s faster,” said O’Malley.
I’m sure O’Malley means well and is probably accurately portraying the near-farcical situation. But the government shouldn’t be pushing citizens into lawsuits over public records. The presumption is supposed to be openness, not schoolyard taunts of “make me.” But that’s where the state remains, even after public records reform: a drain on taxpayers both ways, whether screwing them out of records or paying legal fees with taxpayer funds at the end of the apparently inevitable lawsuits.