To: Shawn Williams, Massachusetts Supervisor of Records
Cc: Lori Sullivan, the staff attorney in Williams’s office who research my appeal
Cc: Susan Krupanski, the MBTA employee who denied my legitimate public records request
Cc: Will Brownsberger, my state senator and an all-around good guy
Cc: On the Media
Cc: The Boston Globe
Cc: The Boston Herald
Dear Mr. Williams,
I have received your letter dated May 28, 2013, in which you denied my appeal of the failure by the MBTA to provide me with records I requested under the Massachusetts Public Records Law. A copy of your letter is attached for reference.
The legal justification you provide for denying my appeal is specious. Furthermore, your denial of my appeal flies in the face of available facts. Finally, on a purely common-sense level, your response is simply absurd.
In your letter, you wrote, “There is a presumption that all government employees perform their duties in an honest and impartial manner.” To support this assertion, you cited LaPointe v. License Bd. of Worcester and Konover Mgt. Corp. v. Planning Bd. of Auburn, to which I will add a third, Foster From Gloucester, Inc. v. City Council of Gloucester. Unfortunately, those three decisions do not say what you claim. LaPointe:
There is every presumption in favor of the honesty and sufficiency of the motives actuating public officers in actions ostensibly taken for the general welfare.
Konover:
… the strong presumption that a public official will perform honestly and impartially and will properly discharge the duties of her office in the public interest.
Foster:
There is every presumption in favor of the honesty and sufficiency of the motives actuating public officers in actions ostensibly taken for the general welfare.
(Emphasis added.)
According to Massachusetts law, a “public official” is “a person who holds public office,” and “public office” is “a position for which one is nominated at a state primary or chosen at a state election, excluding the positions of senator and representative in congress and the office of regional district school committee member elected district-wide.” As such, Ms. Krupanski’s position is not a public office, she is not a public official, and she is not entitled to the benefit of the presumption you cited.
Even were we to falsely assume that the case law says what you claimed, your justification for denying my appeal would still be invalid. The presumption that a public official performs his/her duties honestly and impartially does not preclude any questioning whatsoever of the actions and decisions of public employees. Rather, it precludes questioning the validity of such actions and decisions in the absence of any evidence to the contrary. Here, however, there is more than sufficient evidence to call into question the good faith of Krupanski’s response to my request.
As I pointed out in my appeal, state law requires that the MBTA retain records of correspondence with the public. In fact, the Massachusetts Statewide Records Retention Schedule, a document with which I assume you are familiar given that it was published by the Secretary of State’s office and “produced in conjunction with the Massachusetts Archives and the Supervisor or Records,” stipulates that such records must be retained for a minimum of three years.
As I further pointed out in my appeal, my public records request could have been satisfied by providing me with copies of the first pages of all public records requests prior to mine in 2013, along with the first pages of the responses sent by the MBTA, with exempt information redacted from the copies.
If the MBTA does not have those documents to provide me with copies of their first pages, then they are in clear violation of the retention schedule specified by your office under the statutory provisions of M.G.L. ch. 4, § 7(26), c. 30 § 42, and c. 66, §§ 1, 8 and 9. If they do have those documents, then Krupanski’s assertion that the records I requested do not exist is simply not true. In short, Krupanski’s response puts her in violation of one state law or another. If that is not a compelling argument against an assumption of her good faith, I don’t know what is.
I have additional evidence which casts doubt on Krupanski’s willingness and ability to perform her duties in compliance with the public records law. I reserve the right to present said evidence later if I deem it necessary, but frankly I think I have provided more than adequate justification for a serious inquiry by your office into Krupanski’s response to the the public records request currently under discussion.
From a common-sense point of view, the whole point of the office of Supervisor of Records is to provide a mechanism for compelling recalcitrant agencies of state government to follow the public records law. If it were reasonable for you to deny any appeal on the grounds that, “There is a presumption that all government employees perform their duties in an honest and impartial manner,” then those grounds could be used to deny all appeals, and there would be no point in your office existing. In other words, it is patently obvious that the legislature created your office in explicit acknowledgment of the fact that government employees do not always follow the law, and that it is the responsibility of your office to fully investigate appeals, to search out the actual facts, rather than taking the word of custodians of records at face value to the detriment of people requesting access to public records. Indeed, here is what A Guide to the Massachusetts Public Records Law, published by the Secretary of State’s office, a document with which I assume you are quite familiar, has to say about the office of Supervisor of Records:
A requester who is denied access to any requested information may petition the Supervisor of Records (Supervisor) for a review of the request. The Supervisor will then instruct a staff attorney or another staff member to contact the records custodian and requester as needed to ascertain the relevant facts and applicable law. The findings are then reported to the Supervisor to assist in making a decision. The records custodian will receive an administrative order if the Supervisor determines that records are being improperly withheld or the proposed fee is excessive.
On the question of “relevant facts,” it is parently obvious that whether Krupanski’s office keeps copies of public record requests and the MBTA’s responses is “relevant,” and your failure to ascertain the answer to that question constitutes a failure to perform the most basic duties of your position. And it is difficult to imagine how your office could ever “determine that records are being improperly withheld” if indeed it were reasonable to simply assume that every government employee responding to a public records request does so “in an honest and impartial manner.”
Oh, and while we’re on the subject, the Guide referenced above also clearly spells out the MBTA’s legal obligation to retain the records about which I inquired, buttressing the argument I made above that if Krupanski is telling the truth about the records I requested not existing, then her office is in violation of records retention laws, enforcement of which I believe is your office’s responsibility.
In light of the above, it is clear that rather than denying my appeal, you should have accepted it and compelled Krupanski to release to me the records I requested. I look forward to your promptly remedying your error.
Sincerely,
Jonathan Kamens
June must be public records request denial via specious claims month! I googled Williams after getting my letter from him. I asked my town for the list of email addresses of people who signed up for town notifications. Mind you, there is no name or anything else associated with the email addresses and the town already informs people that their email addresses become public record and subject to disclosure. Williams agreed with the town (which wants to protect political incumbents) that disclosing email addresses would be an invasion of privacy without overriding public benefit. Its taxpayer property and less invasive than a phone book.
Who is this Shawn Williams? He only passed the bar in 2005 and is the secretary of public records?
I think I’d have to agree with the town on this one. People don’t expect their email addresses given to the town for notifications to be distributed to third parties. Nowadays, with spam and identity theft so prevalent, in my opinion people have the right to expect the town to keep their email addresses private.
Are you positive “the town already informs people that their email addresses become public record and subject to disclosure?” That frankly seems unlikely to me. If it’s true, then I’d say it’s that notice, and not the town’s decision not to give the list to you, that is in error.