Public defenders sue Mass. State Police, allege flouting of Public Records Law

The state-subsidized agency that provides legal representation for indigent criminal defendants is suing the Massachusetts State Police, alleging repeated and widespread violations of the state’s Public Records Law.

In a lawsuit amended last week in Suffolk Superior Court, the Committee for Public Counsel Services requested that a judge order state police to “remedy its regular practice,” of violating the law.

The public defender’s office – which receives more than $300 million in state funding annually – is asking the state police, which receives more than $440 million annually, to foot the cost of the litigation should it prevail.

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In either case, taxpayer money will go toward litigating disputes over information public defenders allege state police have routinely withheld, often despite orders from the state agency tasked with overseeing the law.

“(The Massachusetts State Police’s) failures here are not isolated events, and CPCS is not alone in confronting MSP’s regular practice of flouting the Public Records Law,” the public defenders wrote in their lawsuit.

The lawsuit alleges state police routinely break the Public Records Law by failing to respond under the allotted timeframe, failing to diligently search for records, improperly withholding records and defying orders from the secretary of state’s public records division.

David Procopio, communications director for the state police, declined to comment on the lawsuit, citing a department policy regarding pending litigation.

The lawsuit alleges that a top state police lawyer made an “inaccurate” statement in a sworn affidavit regarding her response to a public records request, and alleges agency lawyers have tried to suggest modifications to requests not for efficiency or to save resources, “but rather to prevent responsive records from being produced at all.”

For years critics have described the Massachusetts State Police as being among the most secretive agencies in the country. The lawsuit notes that the agency in 2015 won the “Golden Padlock” award for opacity by the journalism nonprofit Investigative Reporters and Editors.

The CPCS lawsuit lists more than a dozen of requests it says state police have failed to adequately answer over the past two years, from queries about police officers with criminal records to information about multiple kinds of surveillance technology.

“MSP has not met its burden to show that public safety is jeopardized by the public knowing who trains the state police, which officers have received this additional training, or what tools MSP can deploy to secretly surveille Bay Staters,” the lawyers wrote.

One of the requests public defenders are suing over references a specific kind of phone application, called Callyo, that, as the Telegram & Gazette reported last year, state police have used to make recordings that were never disclosed to defendants.

According to the lawsuit, the state police have turned over some information regarding internal probes into the topic, but have declined to release their full “audit,” an action the defenders allege violates the law.

The public defenders’ lawsuit also faults state police for requests regarding “information regarding (the) North Worcester County Drug Task Force and MSP Central Gang Unit,” as well as information it alleges police are withholding regarding troopers accused of criminal conduct.

According to the lawsuit, state police took 588 days to produce a list of troopers charged with criminal conduct upon request, and even then limited the list only to officers criminally charged in the overtime theft scandal that led to the disbandment of Troop E.

The lawsuit alleges that the state police said they could not produce a comprehensive list of officers charged with crimes because the agency did not keep one.

However, the lawsuit separately stated the state police did turn over information related to a portal of police officer credibility issues – which it referred to as a “Brady portal” – though it also alleged incomplete responses to that request.

In summing up the department’s responses to its 14 disputed requests, public defenders wrote that, after more than two years, fewer than half have been resolved, none were fully answered within the legally required timeframes, and – even when the agency did turn over documents – “its communication and productions have left no confidence that it conducted a reasonably thorough search for documents and, in fact, have indicated the opposite.”

The lawsuit further alleges that, in one instance, the state police turned over information via the Public Records Law while simultaneously arguing that it couldn’t be publicly disseminated.

“MSP’s statement purporting to condition and limit CPCS’s use of documents produced pursuant to the Public Records Law is not authorized by law and is unenforceable,” the lawsuit states, asking that a judge make the finding explicit.

The lawsuit also asks a judge to declare that the state police broke the law, grant an injunction ordering them to respond to requests within the time period required by law, award lawyers' fees and “enter a mandatory injunction directing MSP to take specific, appropriate steps to remedy its regular practice of violating the Public Records Law.”

The lawsuit also requests a $5,000 punitive damages award to a special Public Records Assistance Fund that legislators set up about eight years ago.

The T&G obtained the first award of such punitive damages after a judge found the City of Worcester had illegally withheld police misconduct investigations in bad faith.

Open government groups routinely critique Massachusetts' Publics Records Law as being weak and difficult to enforce. The secretary of state's public records division is tasked with ordering agencies to comply with the law, but is not empowered to actually enforce it.

That power rests with the attorney general's office, which has the discretion over whether to take agencies that flout the law to court, a route that has historically not been common.

This article originally appeared on Telegram & Gazette: Mass. State Police accused of breaking Public Records Law in lawsuit