Secrets, secrets are no fun: Transparency is needed to thwart police misconduct, but Massachusetts’s public records law provides little help

As that familiar childhood adage goes: “Secrets, secrets are no fun. Secrets, secrets, hurt someone.” Unfortunately, this wisdom has been lost on many state legislatures and police departments who have kept civilians’ complaints and police misconduct records under wraps. Without strong public records laws the public suffers because officers are shielded from robust and transparent disciplinary processes.

In a recent victory, the California legislature passed Senate Bill 1421, which requires California police departments to publicize complaints, internal investigations, and records of certain prior misconduct. Proponents of the bill successfully argued that transparency is the only way to hold police officers accountable and to build trust between the community and the police. Without public access to complaints against police officers, departments can get away with shoddy and biased internal investigations, or no investigations at all. Officers who prove time and again to be either dangerous, incompetent, or both can keep their jobs and effectively conceal their records. Without public accountability, police brutality, wrongful convictions, and false arrests continue unchecked. California’s bill is part of a larger trend towards demanding higher levels of transparency from police departments. In theory, Massachusetts is ahead of the curve given the recent reform to the state’s public records law. But in practice, Massachusetts residents are still fighting an uphill battle to get their records requests fulfilled.

In 2015, the Massachusetts State Police were given the Golden Padlock, a satirical award recognizing the most secretive publicly-funded agencies in the United States. The granting body wrote that the State Police “habitually go to extraordinary lengths to thwart public records requests, protect law enforcement officers and public officials who violate the law and block efforts to scrutinize how the department performs its duties.” Massachusetts residents recently learned that this secrecy protected police officers on the Mass Pike who were paid for overtime work that they did not perform.

The Boston Globe tested Massachusetts’s 351 cities and towns in 2015 to learn how they responded to records requests filed by ordinary citizens. 58% of municipalities failed to respond within the 10-day limit set by state law. Nearly a quarter took more than 40 days to respond or never responded at all. Notably, more than a dozen requests were refused outright—including “use of force” policies describing when officers can use their weapons. In contrast, Boston’s police department posts its “use of force” policies online; smaller Massachusetts towns should follow this practice.  

Despite some changes to the public records law which took effect in 2017, it remains one of the weakest in the country—especially because the long list of oft-abused exemptions remains. But one positive change is that if a requester prevails in a court action, the court may award attorney’s fees, costs, and punitive damages between $1,000 and $5,000 in certain cases. This provides some incentive for agencies to comply with requests, but not everyone has the resources to pursue their records claims in court. The law also caps fees that agencies can charge for public records: for example agencies now cannot charge more than $25 per hour for time spent on a request. Agencies are still supposed to comply with records requests within 10 calendar days, yet problematically they can grant themselves extra time as long as they claim they are too busy to both handle the request and fulfill their ordinary obligations. And many of the records ultimately provided are heavily redacted.

The people of Massachusetts deserve better. They deserve transparency from their public servants, especially from police officers who wield immense power over their communities. They deserve good-faith efforts from police departments to fulfill records requests within the mandatory 10-day period. They deserve robust investigations of police brutality and swift discipline of abusive officers. The 2017 public records law reform was a small step in the right direction, but residents must demand more of their elected representatives and public servants.

By Monick Perone, Legal Intern