The high cost of obtaining police misconduct records in Massachusetts
The Telegram & Gazette, a Worcester-based newspaper, recently published an article about a state trooper with a history of receiving citizen complaints because of his behavior (see here for more details). The Telegram & Gazette was able to access the complaint records because of the Massachusetts Public Records Law, a statute that allows anyone to request copies of all kinds of records from local and state government agencies.
When you hear the term “public records,” you might imagine that these documents are freely accessible to any members of the public who request them. In reality, getting copies of public records often carries enormous costs.
In theory, the government must make a good faith attempt to respond to public records requests within 10 days and the fees they charge must be reasonable. In practice, government agencies are often able to get away with wrongfully delaying the release of time sensitive information, using loopholes to charge exorbitant amounts of money for records, illegally destroying public records before they can be copied, and even flat out ignoring requests as The Boston Globe reported in a 2009 article titled “High costs can make open records seem closed.” There are no consequences for failing to comply with the public records law. A government employee who breaks this law cannot be fined or charged with a crime.
Police departments typically justify fees by pointing out that they must redact certain information from records. There are certain types of information that police are allowed or required to redact before they can release records to the public. For instance, if police released a complaint, they might have to redact identifying information about the complainant to protect his or her privacy. There isn’t necessarily anything wrong with redacting certain information, but it becomes a problem when it makes fees so high that the cost of obtaining records is too much for many people to afford.
I asked Thomas Caywood, the author of the Telegram & Gazette story, how much the newspaper was charged for the complaint records. He told me that the Telegram “paid $800 up front based on [the] state police estimate, but [the] actual cost was a couple of hundred less.” The state police eventually refunded the difference, but that means the paper was still charged $600 for the records. The Telegram obtained about 60 pages of documents, so the paper was charged about $10 per page.
In 2008, the Telegram & Gazette became involved in a lengthy public records dispute with the Worcester Police Department. After the Telegram published an article about Worcester police officer Mark Rojas shooting a family’s pet dog to death, the paper began receiving numerous letters from readers who said they had also been abused by the officer. In April, 2008, the Telegram & Gazette sent the police a public records request for Rojas’s entire internal affairs file.
The police department charged the paper $1,500, money which it quickly accepted, but it did not release the more than 1,500 pages of documents until December. When the documents were released, they were heavily redacted to the point that “776 pages contained little or no information,” according to the Telegram & Gazette. In one case, the police had literally blacked out an entire page.
To get access to the remaining 700+ pages of Rojas’s internal affairs file, the Telegram & Gazette was forced to sue the police department. Though these documents are public records, Worcester bureaucrats spent taxpayer money to defend the city against the lawsuit and keep them secret. A judge ultimately ruled that their reasons for withholding the information were “clearly without merit.” It took more than two years from the initial public records request before the Telegram & Gazette was finally able to get copies of the remaining pages.
Those pages contained some of the most disturbing information about Officer Rojas which might explain why the Worcester Police Department was so desperate to conceal them from the public (read more about this story here).
I also have some experience requesting police misconduct information. In 2011, I was contacted by a student at UMass Lowell who had been threatened by a campus police officer for video-recording the police as they broke up a fight. The officer approached the student and yelled at him to “Shut that fucking thing off before I slap you!” When I brought the incident to the attention of the campus police chief, he launched an investigation that eventually resulted in the officer being disciplined.
I made a public records request to get a copy of the report of the investigation. I was told that I would have to pay $245 dollars in fees for what I was told was a 20-page report (it was actually 19 pages) — more than $10 per page. I was unable to spare the money, so I asked readers of my site to donate it to me. Three generous individuals stepped up the the plate and I was able to get the report released, scan it, and post it on my website. If they hadn’t, the only copy of the report would probably be sitting in a filing cabinet in the HR department of UMass Lowell and never seen by the public.
I have had other negative experiences trying to obtain police records. In one case, I tried to obtain some documents from the Fitchburg Police Department. After my first request was completely ignored, I sent a second letter on July 25, 2011. That time, I received a three sentence boilerplate letter signed by Officer Brian Rouleau, the head of the Records Department. The letter claimed that a “severe shortage in staff” prevented the department from considering my request right away, but that it would be looked into at an unspecified time in the future.
I gave the police the benefit of the doubt and waited a reasonable amount of time in the hope that they would send a follow-up letter that answered my request. After giving the police more than a month, I called the Records Division on September, 5, but could not reach Officer Rouleau, so I left a message on his voicemail asking him to call back. He returned my call the following day and told me that my request would be looked over by Captain Linda Swears, but that Captain Swears was on vacation and would not be able to respond to my request until September 12. Captain Swears never called me.
I called Officer Rouleau back on September 13. When I told him that Swears never contacted me, he told me that he would look into the request himself. Officer Rouleau called me back later that day and told me that he found the documents I was seeking and spoke with City Attorney Mike Ciota about my request. Ciota reportedly told Rouleau that the documents I was seeking fell under a C.O.R.I. exemption and could not be released. Two days later, I received a second letter which reiterated what Officer Rouleau told me over the phone.
In the age of the internet, this is simply inexcusable. We should not have to send requests or pay hundreds or even thousands of dollars in fees to potentially hostile police departments in order to access their records, especially those dealing with misconduct. Our tax dollars already pay for the creation and maintenance of these records. We should not have to pay twice. Police departments should be required to post this information to the internet in easily navigable databases in a timely manner and there should be serious consequences for departments that do not comply.
The government is funded with the public’s tax dollars, so it must be as transparent to the public as possible so that we may hold it accountable. This is especially true when it comes to the police, one of the most extraordinarily powerful institutions in our society. The police can search and seize our property, issue fines, use force (including deadly force), and lock people in jail. Their courtroom testimony can turn people into felons, strip them of many of their basic rights, and send them to prison. They have special legal privileges that make it harder to convict them of crimes or sue them.
Police are simply too powerful to be allowed to operate in the dark. They should not be allowed to hide their records behind a wall of fees, delays, and other impediments.