Privacy SOS

The absurdity of the public records process in Massachusetts

The Sunlight Foundation has ranked Massachusetts among the worst states in the nation on government transparency. Journalist Joshua Eaton’s recent correspondence with the Boston Police Department shows just how absurd that secrecy looks on the ground.

In June 2014, fellow Boston-based muckraker Evan Anderson filed a formal public records request with the BPD seeking emails between members of the department and the National Security Agency (NSA). In August of that year, the BPD replied:

“The emails have been compiled (not yet redacted) and there are literally hundreds of them. Many of them contain “Happy Birthday” emails that go back and forth between multiple people. We are wondering if you are okay with us setting those emails aside as it will take time (and expense) to go through them to redact them.”

Finally, after long delays, the Boston Police Department emailed Anderson in November 2014 advising him that he would have to pay over $400 to get the documents. In December, Anderson sent the BPD a check for the requested amount. But the emails weren’t released. Anderson contacted the BPD no less than 32 times between December 2014 and March 2016 asking about the emails he had paid the department $400 to disclose. On March 25, 2016, BPD public affairs officer Rachel McGuire emailed Anderson and told him to call her. The BPD, she told him, had made an error. The $400 fee took into account about 500 pages of emails between the NSA and Boston Police Department that didn’t pertain to Anderson’s original request. She also told him the BPD was ready to release 41 pages of emails that supposedly did fit his original criteria. Anderson promptly filed a request seeking the 500 pages, and asked when the 41 pages would be released.

That was March 2016. It’s now May 2016. The 41 pages have not materialized, and he hasn’t heard another word about the 500 pages.

In response to this ridiculous stonewalling, in June 2015, journalist Joshua Eaton filed a request with the BPD to obtain 

Any and all emails between employees or contractors of the Boston Police Department (BPD) and employees or contractors of the National Security Agency (NSA) between Jan. 1, 2012 and Oct. 2, 2014 that contain the words “birthday,” “holiday,” “holidays,” “Christmas,” “XMas,” “New Year,” “New Years,” or “Thanksgiving.” This request includes emails sent from personal email accounts.

The request was a nod to the Boston Police Department’s initial response to Anderson’s first request, in which they stated that lots of the emails between BPD officers and employees of the National Security Agency “contain “Happy Birthday” emails that go back and forth between multiple people.” The BPD didn’t provide these birthday celebration emails in a timely fashion, so Eaton appealed. Finally, on March 21, 2016, public relations officer Lt. Michael McCarthy emailed Eaton to tell him “the BPD has done an extensive search of our records and we have no records responsive to this request.”

Today, Eaton filed an appeal, which highlights the following, almost comically ridiculous facts:

  • In August 2014 the Boston Police Department told journalist Evan Anderson that “many” emails between BPD and NSA employees contain the phrase “Happy Birthday.”
  • On March 21, 2016, the Boston Police Department told journalist Joshua Eaton that the department possesses no emails between BPD and NSA employees containing the phrase “Happy Birthday.”

In some states, this kind of blatant disregard for democratic integrity, transparency, and accountability might shock the body politic. But unfortunately, due to our weak public records law, in Boston it’s just more of the same. The Boston Police Department can treat journalists and the public this way—saying X today, and Y tomorrow, and refusing to comply with the law—because our public records law has no teeth. Even if these journalists sued the department and a judge ordered the records released, the reporters wouldn’t be guaranteed to get reimbursed for their legal fees. 

This is exactly what results. If you want to help fix this, tell the Massachusetts legislature to update the public records law.



© 2018 ACLU of Massachusetts.