DAs ignore many requests for public records
Offices also don’t respond to state regulator
A correction has been added to this story.
THE STATE’S DISTRICT attorneys are sworn to uphold the law, but when it comes to one particular law – the Massachusetts Public Records Law– they often fall short.
Under the records law, citizens can file requests for records with state and municipal government entities and are entitled to receive them as long as the documents aren’t covered by one of the law’s exemptions or by attorney-client privilege. Even if exemptions or privilege are claimed, citizens can challenge the response by filing an appeal with the state’s supervisor of public records, who works out of the secretary of state’s office.
A review of appeals filed last year in connection with public recordsrequests submitted to the 11 district attorneyssuggests the process isn’t working well.
Overall, 162 public recordsappeals were filed, and the DAs were ordered to provide the records 150 times, or nearly 93 percent of the time.
The DAs were ordered to supply the records on 57 of the appeals because they never bothered to respond to the initial requests for documents. And in more than half (29)of those cases, the DA offices either didn’t respond to the state supervisor of public records or missed a deadline when her office was investigating the appeals.
Some of the cases where the DAs ignored both the records requester and the supervisor of public records ended with no records being provided. The supervisor of public records lacks enforcement powers and rarely turns cases over to the attorney general’s office for prosecution.
Justin Silverman, the executive director of the New England First Amendment Coalition, thinks the DA numbers may actually be understating the problem.
“While these numbers are concerning, the amount of requests that go ignored is likely even higher,” Silverman says. “Not all cases are appealed. Not all requesters dig in and fight for the information they need. I fear what’s represented here is only part of the story.”
There also may be another way of looking at the numbers –that DAs aren’t responding to records requests because they are overwhelmed by the volume of requests they are receiving. The DAs are also faced with staffing challenges, choosing between deploying staff to prosecute crime or deal with records requests.
“As the largest and busiest prosecutor’s office in New England we receive a huge volume of public records requests, and we do our best to comply,” said a statement issued by a spokesman for Suffolk County DA Kevin Hayden. “Our response times are affected by the volume, complexity, and cost of the requests and the staffing available to handle them. We certainly recognize there is room for improvement.”
The statement did not disclose how many total records requests the office receives or how much of the workforceis devoted to handling the requests, but it noted that two paralegals have been recently hired to help process them.
Hayden was ordered to produce documents in all 36 of the public records appeals filed against his office last year. Just over half (19) of those appeals were filed because his office ignored the records requests, and in more than half of those cases (10) Hayden’s office also ignored the supervisor of public records or failed to meet deadlines when the supervisor was adjudicating the appeals.
(CORRECTION: The original version of this story said DAs “lost” a large number of appeals. In fact, the supervisor of public records directed DA offices to respond to requests for records but did not order the offices to produce the records. As the Middlesex DA’s office said, “the Supervisor did not in fact order us to produce any records during the relevant time period.” The office also said there is no required timeframe for responding to the supervisor of public records on receipt of a notice of appeal.)
Middlesex County District Attorney Marian Ryan was directed to produce documents in 21 of the public records appeals filed against her office. More than half (11) of those appeals were filed because her office failed to respond to the initial records requests in a timely fashion.
In a statement, Ryan’s office said some deadlines may have been missed but every records requester was responded to.
“This office has no open appeals and has issued some response to the requestor in all of the 282 requests for records we received in 2022,” the statement said. “Even in the cases where the records were not provided, a response was provided and no requests were left unaddressed.”
Plymouth County District Attorney Timothy Cruz was directed to produce documents in 16 of the 17 public records appeals filed against his office. More than half (10) of the appeals were a consequence of his office’s failure to respond to the records requests in a timely fashion; in eight of those cases, Cruz’s office did not respond to the supervisor of public records when her office was adjudicating the appeals.
“The Plymouth County District Attorney’s Office is open and transparent with regard to fulfilling public records requests,” said a statement issued by Cruz’s office. “This past year we received 220 public records requests, nearly one every business day.”
The statement further noted that two new assistant district attorneys have been assigned to help process public records requests.
Mary Connaughton of the Boston-based Pioneer Institute said DAs, because of their law enforcement role, should be zealous in upholding all of the laws of the state. “After all, transparency laws are key to ensuring public trust, and no one, no office is above such laws that protect the very foundation of our democratic form of government,” she said.