Public Records Litigation

Massachusetts recently strengthened the state Public Records Law. This law promotes government transparency and accountability. Our firm uses the law to obtain documents when we are evaluating cases. Usually we are able to obtain records voluntarily, but when a government agency fails to provide public records as required by law, we have successfully filed suit under the statute.

Refusing to provide public records on bogus “public safety” grounds

We represent People for the Ethical Treatment of Animals, Inc. (“PETA”), in a case on their behalf seeking to compel the Massachusetts Department of Agricultural Resources (“MDAR”) to provide public records about the transport of monkeys and other non-human primates into and out of Massachusetts. MDAR refused to provide the records, citing the “public safety exemption” to the public records law, which permits agencies to withhold records that they reasonably believe would pose a safety threat. MDAR claimed that all records having to do with animal research had to be kept secret from the public, noting that animal rights extremists had committed acts of violence in the past. The Superior Court (the lower court) sided with MDAR, and we filed an appeal.

The Supreme Judicial Court took the case to decide the scope of the public safety exemption, which had not yet been interpreted by the Court. Attorney David Milton argued that the language and purpose of the exemption, which was passed shortly after 9/11, supported a narrow interpretation. David argued that the law was primarily aimed at protecting records pertaining to physical infrastructure and security measures, such as blueprints and emergency preparedness plans—and not the animal health certificates involved in the case. The ACLU of Massachusetts and Prisoners Legal Services each filed an amicus, or “friend of the court,” brief supporting our client’s position.

The SJC agreed with our position, explaining that an agency cannot withhold records on public safety grounds based on unsubstantiated speculation. Rather, the agency must provide specific evidence that releasing the records presents a safety risk; this evidence must be particularly strong in cases like this one, where the records have nothing to do with infrastructure or security measures.

Claiming video of a police assault is confidential, while releasing an edited version that depicts the officer as a hero

We sued the Massachusetts Bay Transportation Authority (MBTA) after they denied our public records request for the full video of a police assault. In May of 2014, the MBTA released a portion of a video that appeared to show a police officer rescuing a man from falling onto the train tracks. The full video, which we received after we sued the MBTA in Superior Court, shows that shortly after this apparent rescue, the officer assaults the man.

In a news conference on the day of the incident, May 7, 2014, Transit Police Chief Paul MacMillan called the actions of Officer Conway “tremendous” and said the agency was “very proud of him.” The MBTA posted the edited video on its blog and to other social media, and it was shown in local and national news stories.

The complete video shows the officer in a different light. Just after yanking the man from the edge of the track, Officer Conway threw him to the ground and attempted to handcuff him. When he had difficulty turning the man onto his stomach, Officer Conway began punching him. The video shows numerous punches; some blows were to the head. Officer Conway also kneed the man, who suffered multiple facial fractures as a result of the beating.

Soon after the incident, attorney David Milton sent the MBTA a public records request for all footage of the incident. The MBTA denied our request, claiming that the unreleased portions of the video were exempt under the public records law, and that its release would reveal confidential law enforcement techniques as well as the MBTA’s internal deliberations.

When the MBTA refused to reconsider its position, we sued the MBTA under the public records law in October 2014. The MBTA delayed responding to the lawsuit for several months, eventually hiring the international law firm Seyfarth Shaw to defend the case. The MBTA eventually agreed to provide the complete video, but the agency continues to insist that the full video is not a public record.

Watch the report by 5 Investigates: 5 Investigates: The video MBTA Transit Police didn't want you to see.