A Massachusetts police department’s SWAT unit has found a creative way to get around the state’s open records law: Invoke its standing as a private corporation.
As part of a project detailing the rapid militarization of law enforcement agencies in Massachusetts, the American Civil Liberties Union sent an open records request to all police departments pursuant to the commonwealth’s open records law.
Many states have open records law that are adapted from the federal Freedom of Information Act, a law that grants members of the public the right to inspect government records and other documents prepared in the ordinary course of government business. States with such a law generally narrow the type of records that the public can gain access to — for example, documents that detail investigatory tactics used by police are generally exempt from disclosure.
But police departments in Massachusetts have found another way to get around the open records law: Claim that certain units operate as corporations.
About one-third of the SWAT units found in the commonwealth are operated as a “law enforcement council” (LEC) made up of several police departments to serve a particular community. And according to The Washington Post, some of these LECs have registered as 501(c)(3) corporations, granting them, among other things, exemption from disclosing police records when requested.
The ACLU said this loophole made obtaining records from law enforcement agencies “difficult and, in most cases, impossible.”
“Hiding behind the argument that they are private corporations not subject to the public records laws, the LECs have refused to provide documents regarding their SWAT team policies and procedures,” the ACLU wrote in its report. “They have also failed to disclose anything about their operations, including how many raids they have executed or for what purpose.”
That’s problematic, the ACLU says, because the LECs operate as public institutions that are funded with public money — and many of the LECs don’t keep adequate records of their operations. Without retaining standard records of SWAT operations and making them available for inspection, the ACLU contends that law enforcement agencies in Massachusetts cannot be held accountable by the public they are sworn to serve.
The ACLU noted that in at least one instance, public pressure forced one SWAT unit to produce documents for inspection, but only after a botched drug raid killed 68-year-old Eurie Stamps, a grandfather of 12. Documents released by the Framingham SWAT unit revealed four “high-risk tactical missions” the following year, all related to narcotics charges.
Local and state police departments across the country have faced an increase in open records requests over the past year, most from citizens interested in law enforcement investigatory tactics following last year’s disclosure by former National Security Agency contractor Edward Snowden that showed the spy agency in collusion with domestic law enforcement colleagues.
In June, a story filed by the Associated Press revealed the Obama administration had been quietly advising local and state police departments to keep quiet on a clandestine surveillance tool known as a Stingray that, when used, indiscriminately targets cellphones for data collection. Earlier this year, the FBI filed a brief in a state criminal matter asking an appellate court to keep testimony related to a Florida police department’s use of a Stingray sealed (the court declined, and the testimony was made public last month).
TheBlot Magazine has also faced pushback with regard to at least two open records requests filed with police departments in California and New Mexico. Citing anti-terrorism and arms trafficking laws, the Sacramento County Sheriff’s Department denied TheBlot’s request for documents related to the agency’s purported use of a Stingray device. The agency has fought similar requests from other parties, though it did furnish a Sacramento television station with an invoice from the Harris Corporation related to the purchase of equipment that is used in conjunction with a Stingray.
In a separate request, the Albuquerque Police Department asked for “an additional reasonable period of time” on Tuesday in order to fulfill an open records request filed by TheBlot in June. The request, which sought records related to the department’s secret surveillance on a peaceful and lawful protest that took place earlier in the month, was considered “excessively burdensome and broad” by the agency. A police spokesperson did not respond to an e-mail from TheBlot asking how much more time the agency would need to produce the records.