A blog post about Public Records Law, indeed … sounds dry and a waste of time. But, this is an area of law rarely seeing light. And, its an area where police departments routinely break the law, effectively denying citizens due process of law.
Essentially, with few exceptions, citizens have a right to view records made by governmental employees. This includes reports, videos, tapes, memos. If you live in MA, you should feel free to exercise that right. Our government needs to be more transparent.
In a 2008 nationwide study of access to public records in the 50 states, the study gave Massachusetts a failing grade of F. Massachusetts’ governments operate largely in secret, and do so alongside the legislature and Governor who claim they are not subject to the state’s public records law.
This Law Office has dealt with these backwards practices. It has been not only frustrating, it has caused real harm upon our clients. (Below is a great guide about open government and Public Records Law.)
Side-note: this post is not to say government employees don’t work hard or do their job. Tight budgets are likely the major cause of the problem.
The situations that this Law Office mostly sees are ones involving municipal police departments. Many times police departments will flat out refuse to give records, such as police reports or 911 tapes – even though police are required by law to give it out once requested. That is, unless the record falls under some exemption, which is rare. Some police personnel have been working at police departments for years, all while routinely denying public requests for police records. Granted, many times these personnel are doing so innocently – not knowing that plain denials actions are per se illegal, and harmful. However, this ignorance/abuse is wide-spread in police departments all over the Commonwealth.
If you do not see the significance, imagine being in a court room, charged with a serious crime, without the ability to know what the prosecution is going to argue, and what evidence they have against you. This is unfair and may also mistakenly deprive you of a protected liberty interest or a property interest. Therefore, when the government (e.g., police) seeks to burden a citizen’s protected liberty interest or property interest, procedural due process requires that, at a minimum, the government provide the person notice of deprivation and an opportunity to be heard.
Essentially, the 14th amendment’s procedural due process right requires a State to enable citizens to contest the basis upon which a State proposes to deprive them of protected interests. If a citizen is not allowed access of public records that are either damning or mitigating, the principles behind the reasons for procedural due process, fairness and justice, are paralyzed. Police departments around the Commonwealth routinely deny or unfairly delay the production of requested police records that many times are used against them in court without reasonable time to prepare responses, effectively violating a defendants 14th amendment right to due process.
In a blunt memo to state and local police agencies, the Supervisor of Public Records in 2003 went on a mission to set out the law. After much digging, here is the Memo., followed by an interesting case where the Worcester Police department was forced to reveal internal investigations documents regarding police misconduct:
Before continuing to reading the case, consider this quote from the case:
the Legislature has identified twelve categories of records, otherwise public, that are exempt from disclosure, including “personnel . . .files or information” and “investigatory materials necessarily compiled out of the public view by law enforcement . . . the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” The custodian of the requested record has the burden of proving, with specificity, the applicability of the relevant exemption. See G. L. c. 66, § 10 (c); District Attorney for the Norfolk Dist. v. Flatley, 419 Mass.507 , 511 (1995). To the extent that only a portion of a public record may fall within an exemption to disclosure, the nonexempt “segregable portion” of the record is subject to public access. See G.L. c. 66, § 10 (a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281 , 287-288, 290 (1979) (“[t]hat some exempt material may be found in a document or report of an investigatory character does not justify cloture as to all of it”). There is no “blanket exemption” to public disclosure for records kept by police departments or for investigatory materials. See District Attorney for the Norfolk Dist. v. Flatley, supra at 512-513.
You may wish to skip reading this case, if you wish to see more information about how to file your own records request.
In the first document of this post and in the two documents below, there’s step by step procedures about how to file your own request. But, here’s a sample of what the initial letter should look like:
Date request mailed
Agency Head or Keeper of the Records
Name of Agency
Address of Agency
City, State, Zip Code
Re: Massachusetts Public Records Request
Dear _______:
This is a request under the Massachusetts Public Records Law (M. G. L. Chapter 66, Section 10). I am requesting that I be provided a copy of the following records:
[Please include a detailed description of the information you are seeking.]
I recognize that you may charge reasonable costs for copies, as well as for personnel time needed to comply with this request. If you expect costs to exceed $10.00, please provide a detailed fee estimate.
The Public Records Law requires you to provide me with a written response within 10 calendar days. If you cannot comply with my request, you are statutorily required to provide an explanation in writing.
Sincerely,
Your Name
Contact Information (address, email, telephone)
Should you receive an unsatisfactory response, you may appeal to the Supervisor of Records. You have the right to appeal to the Supervisor of Records if you are denied access to public records. To start an appeal, you will need to send the Supervisor of Records copies of the following:
- The written request you made to the records custodian. Your request must be over ten (10) days and under ninety (90) days old;
- The written response, if any, that you received from the records custodian; and
- A brief letter from you to the Supervisor of Records detailing the reason for the appeal.
The address of the Supervisor of Records is:
Supervisor of Records
Office of the Secretary of the Commonwealth
McCormack Building, Room 1719
One Ashburton Place
Boston, MA 02108
For additional information about making a request or filing an appeal, see 950 CMR 32.08 (2) or refer to Supervisor of Records’ publication below, A Guide to the Massachusetts Public Records Law, and the other PDF, entitled, Massachusetts Public Records Law.