Keeping public records secret is costing Mass. state and local agencies

The town of Natick has paid WBUR more than $22,000 to settle a lawsuit after refusing for months to provide records on a police officer accused of sexually assaulting a dispatcher. It’s just the latest example of government agencies in Massachusetts paying out large sums after ignoring or rejecting public records requests.

In March, Worcester agreed to pay the Worcester Telegram & Gazette $180,000 after a judge ruled the city illegally withheld records of police misconduct investigations. The judge also ordered the city to pay another $5,000 in punitive damages, the maximum allowed by law, to the state’s new Public Records Assistance Fund.

The City of Boston agreed in one settlement to pay $75,000 to the nonprofit legal group Lawyers for Civil Rights — and promised to clear the city's public records backlog within six months. Boston also paid $7,000 to WBUR to settle a lawsuit alleging the Boston Police Department ignored or delayed record requests.

At the state level, the commonwealth agreed to pay the Boston Globe nearly $43,000 to settle records lawsuits against the Department of Correction, the State Police and the Executive Office of Health and Human Services.

“It sends a message to the government agencies that they can't continue playing games with the public's right-to-know without any kind of consequence,” said Justin Silverman, executive director of the New England First Amendment Coalition. He said he hopes the payments will encourage more people to sue government officials who refuse to release records that are clearly public.

The payments are the result of a 2017 change in the state public records law that gives requestors the right to recoup legal fees if they go to court and win — something that already existed in most other states. Previously, many organizations were reluctant to bring public records lawsuits in Massachusetts, because they couldn't afford the attorney fees.

Now some lawyers for news outlets and others seeking public records are more likely to file suit in hopes of recouping their fees later if they win the lawsuit or reach a settlement.

“There was no point in doing the litigation before, unless the client could afford to pay you by the hour,” civil rights attorney Howard Friedman said. Cases could be particularly expensive, he said, if the agency was likely to appeal. “Who's going to take a case all the way to the SJC [Supreme Judicial Court] without getting paid?”

Friedman said suing government agencies is still often the only way to shake loose records. But he hopes the recent string of payments will prompt government officials to start complying with the law and releasing documents more freely in the future.

“If you can keep suing them,” Friedman said, “they might begin to see the light.”

Many records in Massachusetts remain confidential. It’s the only state where the judiciary, the Legislature and governor’s office all claim to be exempt from the public records law. Municipalities and state agencies have a host of exemptions they can claim to withhold or redact records. But many documents are supposed to be publicly available under the law.

“If you can keep suing them they might begin to see the light.” 

Attorney Howard Friedman

In August, a judge ordered the Bristol County District Attorney’s office to release a report about a person shot and killed by Fall River police to the man's family — and to pay Friedman's firm $44,000 in legal fees. The district attorney has appealed.

Under state law, agencies are supposed to provide at least an initial response to record requests within 10 business days. They then have several additional weeks to provide the actual records. But agencies routinely miss those deadlines.

That was the case in Natick, where town officials ignored requests from WBUR for more than five months. The town initially would not provide even basic information about the officer accused of sexual assault — such as his salary records and photo — nor a legal reason for withholding the information. Natick also refused to release records about the assault of the dispatcher, including a copy of the investigation and complaint by the victim.

After WBUR sued the town a year ago in Middlesex Superior Court, the agency slowly started to release all the requested records. Natick also agreed to pay WBUR $22,384 to reimburse the station for its attorneys’ fees. That's on top of the $15,000 the town paid its own lawyers to handle the case. Town officials did not respond to requests for comment on the payments.

Similarly, the city of Boston agreed to provide WBUR with a list of police misconduct investigations shortly after the station sued the city, negating the need for a judge to decide the case.

Sophia Hall, deputy litigation director at Lawyers for Civil Rights, said these types of resolutions are common. She said she’s had a number of cases where the moment she serves a lawsuit, "the records suddenly appear."

“I believe the more that we do this work and the more expensive that we make it, the more likely we are to get people to comply,” Hall said.

But obtaining records often remains a struggle.

WBUR asked the city of Boston in late July for records showing how much it has paid to settle public records lawsuits in recent years. Two months later, the city has yet to provide the records — past the legal deadline.