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Mass. Commission Against Discrimination must turn over info about open cases

The Massachusetts Commission Against Discrimination’s recently adopted policy regarding the disclosure of charges in open cases conflicts with its own regulations, the state Appeals Court has found.

With its Nov. 19 ruling, the court overturned the decision of Massachusetts Superior Court Judge Rosemary Connolly that the MCAD was not required to continue to provide an attorney with copies of charges in open cases under investigation or spreadsheets summarizing charge data.

That attorney, J. Whitfield Larrabee, has requested the information from the MCAD’s case management database in order to contact potential clients, identify witnesses, and identify patterns of discrimination. Larrabee also stated that he monitors “the fairness, efficiency, and performance of the agency,” according to the Appeals Court’s opinion.

Larrabee received support for his appeal from The Boston Globe, which has also regularly requested information from the MCAD.

Under its new policy, the MCAD planned to disclose complaints pursuant to a public records request only in closed investigations but not complaints in which an investigation was ongoing.

As with Larrabee, the MCAD had denied The Globe’s information requests for pending complaint data in 2015, which The Globe had unsuccessfully appealed to the Secretary of State’s Office.

After Larrabee filed a complaint in Superior Court, Connolly ruled that the public records law, M.G.L.c. 4, §7, Twenty-sixth (f), authorized the MCAD to shield from public disclosure complaints and aggregate data about complaints in open investigations.

Connolly concluded that although the MCAD’s 2015 change of policy was unexplained and contrary to its previous practice, the new policy exempting materials pertaining to open investigations from disclosure served the “public interest.”

The Appeals Court began its analysis by noting that there is no provision in the antidiscrimination statute, M.G.L.c. 151B, that would exempt the disclosure of MCAD complaints or case data.

The court said it did not need to resolve the parties’ arguments over whether the request implicates the investigatory materials exemption in the public records law because 804 Code Mass. Regs. §1.04(4) “squarely governs” and requires the production of the requested information.

“A regulation controls over policy statements or guidelines that conflict with the regulation,” Judge Mary Thomas Sullivan wrote for the panel.

The MCAD argued that disclosure of some charges would result in the disclosure of details that would violate the privacy protections contained in the public records law.

“This argument proves too much, as the current policy permits the disclosure of such information, just at a later date,” Thomas Sullivan wrote.

By allowing pseudonyms to be used with complaints and protective orders, the regulation gives the MCAD “significant statutory tools to protect privacy interests,” she added.

If the MCAD wants to reconsider its policy regarding public disclosure, it must follow the amendment process, the Appeals Court found.

“This process has the intended benefit of requiring public airing of the very complex and important questions of personal privacy, public interest, public access, and statutory mandate presented here,” Thomas Sullivan wrote.

In an emailed statement, Larrabee called the decision “a victory for open government.”

“Without public access to open case data and complaints, the commission has recently conducted most of its activities in secret,” he said. “When discrimination is kept secret, it is able to flourish. The public can now keep a watchful eye on the commission and on companies, government agencies, and individuals who are accused of discrimination.”

However, he noted that the victory may be short lived, pointing out that the MCAD has proposed changing its current regulation to provide that it will deny the public access to complaints and case data in open cases in the future.

If the MCAD makes this change, Larrabee pledged to again sue “in order to maintain public access to the records under our public records law.”

The 20-page decision is Larrabee v. Massachusetts Commission Against Discrimination. The full text of the ruling can be found here.

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