Use of Public Records Act Can Bolster Abuse Cases
By JOHN O. CUNNINGHAM
As police and state agencies conduct investigations into allegations of abuse by priests, nursing home workers and others in positions of trust, lawyers are increasingly utilizing the Public Records Act, G.L.c. 66, Sects. 10 et seq., to access sensitive investigative information that is critical to civil law suits.
Jeffrey A. Newman of Boston, who is representing 14 victims of sexual abuse by Christopher Reardon at the St. Agnes Parish in Middleton, said that he has utilized the law to obtain a volume of investigative information helpful to the victims.
“Agency records are owned by the public and they can’t keep the records from you. The public has a right to know this information under the Public Records Act,” said Newman.
Douglas K. Sheff of Boston, former president of the Massachusetts Academy of Trial Attorneys, agreed and added that “lawyers have been getting records under the federal Freedom of Information Act for years, but many people still don’t know about the state statute or the procedure for getting records.”
Sheff, who is now handling abuse cases, said that “state records can also help to screen bad cases and reduce litigation.”
Maura A. Looney of Boston, the acting supervisor of the Public Records Division of the secretary of the commonwealth, said that “the numbers of record requests have definitely been increasing.”
Looney said the Public Records Division now has six attorneys who processed over 900 appeals involving government denials of access to records in 2001.
Making Requests
Newman said that attorneys should first go to the state agency or entity holding records to which access is needed.
“The law presumes that all records are public, and the burden is on the record-holder to show there is an exemption to public access,” he said, noting that G.L.c. 4 codifies all exemptions that state agencies can invoke to block production.
Newman suggested that lawyers should only make a formal request to the Public Records Division after a state entity has denied access to specific records.
“I usually call people first to scope out what is even available. I want to know what reports exist and where and when they were made before I frame a request,” he said.
Newman also suggested that lawyers could learn a lot about the act from the Public Records Division charged with determining the public record status of all items held by government agencies and entities in the state.
Looney said the secretary of the commonwealth, William F. Galvin, publishes “A Guide to the Massachusetts Public Records Law,” which answers a number of recurring questions under the act and clarifies some misconceptions about the law.
She said that many common requests have involved personnel records, police records and investigations by officers, agencies or municipalities.
Looney explained that record-holders must respond to requests within 10 days, although Newman suggested that a few weeks or longer may be necessary to reproduce responsive information.
Looney also advised lawyers to put requests in writing and to get written determinations, although not required by statute, in order to clarify issues on “appeal” to the Public Records Division.
She said the difficult questions under the law often come down to a balancing act between a right to privacy and the public’s right to access information.
Looney noted that the most common requests subject to exemption were criminal records subject to the Criminal Offender Records Information Act.
“People also request certain personnel information protected by privacy, and redaction of records is often necessary, but there may still be an entitlement to portions of a record,” she added.
The 35-page guidebook that Looney referenced makes clear that computer data and all other forms of electronic documentation are also subject to the statute.
The guidebook also specifies the charges allowed for reproducing records, and spells out the charges that record custodians may add for search time and other tasks.
Practical Applications
Newman said that agencies and governmental entities must often be instructed to comply with the law by the Public Records Division.
In one case, he had to go a step further and bring suit to obtain records from a district attorney’s office in redacted form.
“There is no blanket exemption for investigations, unless they are ongoing, but a lot of people don’t understand that,” said Newman.
He also noted that police reports are not exempt unless production would “detract from effective law enforcement to such a degree as to operate in derogation of the public interest.”
But Sheff said that “many state agencies still don’t know what is expected of them under this law. Federal agencies have been doing this for years under FOIA. OSHA knows how to comply. DSS probably doesn’t.”
Looney acknowledged that “some small towns and agencies still need help understanding the law,” but she added that “they are willing to do the right thing when they know what is required.”
She said it was helpful for lawyers to make “record by record” requests in order to prepare “a good appeal.”
Newman similarly advised that lawyers should refrain from requests styled in typical discovery language, such as, “Provide all documents relating to Project X.”
Sheff agreed, and added, “You should try to establish the length, time and place of any investigations and documents prior to making any requests. Then you can be more specific about the items you are looking to get.”
He said that ultimately “documents can be looked at ‘in camera’ by a court, once they are identified, in order to determine any question of law about their release.”
Looney suggested most questions could be answered by an “appeal” to the Public Records Division when requests are well framed.
She said a well-framed request might be one that “asks for all records associated with the cost of a specific portion of a public project,” and added that bidding information was often requested after the completion of projects.
Newman has framed specific requests to a number of agencies in a number of contexts.
“I find that housing and public health authorities have a wealth of information that can expose a cheap landlord for example,” he said.
Newman also has styled successful requests to the Department of Social Services, the Department of Mental Health, the Disabled Persons Protection Commission, and various district attorneys and criminal authorities.
He has found a lot of information regarding people who were abused in nursing homes.
“One person died when trapped between a side-rail and the bed without any assistance,” he recalled.
Sheff agreed that “this can be an extremely useful tool in abuse cases,” and he added that “there are a lot more of these cases to come.”
Newman suggested that information from agency records was especially useful “in creating a spinal column to build a case.”
He said that he will often gear his discovery “to fill in the blanks on the documents and information gleaned from public records.”
Melissa M. Sindeband of Andover, who has represented many children and parents in cases involving state agencies, said that “it is frequently a struggle to get even the most basic information” from an agency.
She added that she had not made requests under the Open Records Act in the past, but suggested that “it could prove to be a useful tool for getting an agency to identify their own rules and policies, and getting the agency to follow them.”
Without a method to compel production of information, Sindeband has found that “the most basic request can lead to a circle of finger-pointing and denials of responsibility.”
She said she’s looking forward to trying Newman’s methods for compelling production of public records.
