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$4,092.62 charge for a records search

By Thomas Caywood TELEGRAM & GAZETTE STAFF

WORCESTER- A series of state court rulings in a case that originated in the city firmly established that police internal affairs files are public records in Massachusetts.

The state Appeals Court noted in a key ruling nearly five years ago that public access to police internal affairs documents "promotes the core value of trust between citizens and police."

Case closed.

Or so it seemed at the time.

In theory, police department investigations into the actions of its own officers have been open to public view in Massachusetts since a four-year legal tug-of-war between the Worcester Telegram & Gazette and the Worcester Police Department was resolved in the newspaper's favor in September 2003.

In practice, however, gaining access to internal affairs files in Worcester can be a costly and time-consuming ordeal.

What's more, the internal affairs files of officers with the most citizen complaints against them are the least accessible to the public because of prohibitively high police department search and copying fees that can reach several thousand dollars.

"It's emasculating the Worcester Telegram & Gazette decision. They're saying, yeah, they'll make it available, but they'll make it completely unaffordable. That is not open government," said Hector E. Pineiro, a Worcester lawyer and a member of the National Police Accountability Project's advisory board.

The court battle between the T&G and the Worcester Police Department that established internal affairs files are public records has come to be known among lawyers simply as "The Worcester Telegram & Gazette decision."

Roadblocks to access

While that case left no room for doubt that police internal affairs records are public, actually reviewing those files in the city requires a lot of patience and deep pockets, the T&G found.

The newspaper requested access to all citizen complaints and resulting internal affairs reports involving one officer, Mark A. Rojas, during his roughly 12 years with the department. The written public records request was made April 2.

More than three months later - after numerous delays and, ultimately, a successful appeal to the state Supervisor of Records Alan N. Cote - the Police Department responded to the T&G's request with a letter seeking an up-front payment of $4,092.62 for the records.

The letter, signed by Chief of Police Gary J. Gemme and department legal adviser Sgt. Michael J. Kwederis, said the department's thick Bureau of Professional Standards file on Officer Rojas would be scoured for any information exempt from disclosure under the public records law and then provided "as soon as is practicable" after the check cleared.

"However, due to workload considerations, we cannot guarantee that this task will be completed within a more specific time frame," the letter states.

Local open government advocates said the Police Department's demand for more than $4,000 for one officer's internal affairs file, after three months of delays, appears at odds with Chief Gemme's pledge to bring transparency to the department - a promise he made to residents and city leaders when he took office nearly four years ago.

"Who has four thousand bucks in this type of economy to invest to find out how one particular public servant goes about doing his job?" Mr. Pineiro said. "No doubt, this is an effort to insulate these records from public scrutiny."

"It doesn't seem reasonable," agreed Ronal C. Madnick, head of the Worcester County chapter of the American Civil Liberties Union of Massachusetts.

"Clearly, somebody like the T&G, or another corporation, could pay this because they have the funds," Mr. Madnick said. "But the issue is what about a resident who doesn't have the funds? If they are going to charge this kind of fee for research and copying, they're limiting what part of the population has access to this information."

Even so, Mr. Pineiro and Mr. Madnick both credit Chief Gemme with making strides toward peeling back the curtain of secrecy that once shrouded the department's workings from public view.

For his part, Chief Gemme said in an interview that he simply doesn't have the staff or resources to provide free public access to internal affairs files, regardless of whether such a step would foster public confidence in the department, as held by the courts.

"We get hundreds of requests. I can't have the taxpayers pay for this request. I don't think it's fair," he said, later adding, "We're willing to provide the information, but we have to reconcile who's going to pay."

Mr. Pineiro, the local lawyer who represents clients in police brutality lawsuits, said he often requests civilian complaints and internal affairs investigation files on Worcester officers for court cases.

"On the average, when we've requested these records on particular officers, what we've seen is bills ranging from $250 to not more than $375," Mr. Pineiro said. "This $4,000 is impossible. I think they're trying to put a Berlin Wall up to keep you from getting information like this."

The Police Department initially gave the $4,100 figure without any explanation as to how that amount was calculated. Sgt. Kwederis and Chief Gemme didn't respond to a number of calls and e-mails over several weeks seeking the detailed, good-faith estimate required by the state public records law.

The T&G appealed to the state supervisor of records in early June, and the Police Department ultimately provided the breakdown earlier this month at the instructions of the state lawyer handling the appeal. The estimate itemizes the following charges: $2,542.66 for labor, $1,500 for copies and $50 for postage and handling.

A footnote indicates that the lowest-paid employee capable of removing nonpublic information from Officer Rojas' internal affairs file is a police sergeant who makes $41 an hour. At that rate, the labor estimate works out to 62 hours of work, or more than seven full business days to review and copy one officer's file.

At the $1 per page charge for copies cited in the footnote, the $1,500 estimate for copies indicates Officer Rojas' internal affairs file is at least 1,500 pages long - the equivalent of about 6 inches thick.

Mr. Pineiro and Mr. Madnick said they simply don't find the $4,100 estimate credible.

"I think this chief, to his credit, has tried to change policies so that the policies that they have reflect professional procedures. The verdict isn't in as to whether the department is more transparent," Mr. Pineiro said.

"When you ask that people pay $4,000 to see records that are clearly public records," he said, "I have to wonder if there is or isn't a secondary motivation to keep these records buried under a veil of secrecy."

Lynne Wilson, a Seattle-based lawyer and a national police accountability expert, said there's no reason for an $85,000-a-year police sergeant to review internal affairs files to remove the names of witnesses. In Seattle, she said, clerical workers black out the names of witnesses.

"Why would they have to have a sergeant do it?" Ms. Wilson said. "They could just have a clerk do it. And why does it take seven days?"

Chief Gemme noted that the $4,100 estimate only applies to one particular officer, Officer Rojas.

"In other cases, it may be significantly less," he said.

But that fact presents a troubling dynamic. Given that the search and copying fees are based on the amount of material in a file, the officers with the most citizen complaints against them are therefore the very ones most shielded from public scrutiny by prohibitively high fees under the current system.

For example, a hypothetical internal affairs file twice as thick as Officer Rojas' presumably would cost more than $8,000 for a citizen, lawyer or journalist to review.

Chief Gemme said he has no choice, given the department's tight budget, but to charge the fees set out in state law. The law also strongly urges government agencies to waive the fees in cases of public interest, but Chief Gemme said that's not feasible for his department in lean fiscal times.

"How can I assign somebody to do this every time a reporter or a citizen makes a request?" he said.

Secretary of the Commonwealth William F. Galvin and Mr. Cote, the state records supervisor, declined to be interviewed for this story through spokesman Brian McNiff. The staff lawyer who handled the T&G's appeal isn't permitted to speak on the record to the media about a specific case.

"If someone feels that fees are too high, then that is a matter to be appealed to the supervisor of public records," Mr. McNiff said.

'Progress needed'

District 4 City Councilor Barbara Haller, who had expressed concerns about how internal affairs files were handled at the time Chief Gemme took office, said she's been pleased with the chief's efforts to computerize the record-keeping so that department leaders can track problems in real time.

"But it doesn't surprise me that additional progress is needed," Ms. Haller said. "It is an important issue. Police have a lot of authority and power and that has to be balanced with a system that provides accountability. Certainly access to public information is a part of that."

A spokeswoman for City Manager Michael V. O'Brien, who is the chief's boss, said Mr. O'Brien wasn't available to discuss the issue last week.

Even residents who lodge complaints against officers with the department's Bureau of Professional Standards also would have to file a public records request to review police reports, witness interview summaries and the full internal affairs files of a particular officer.

Two months after Officer Rojas shot and killed Dana Sneade's mixed-breed dog Bruno in her Vale Street living room with two shots fired at close range, Ms. Sneade got the results of the police Bureau of Professional Standards investigation resulting from her complaint: a three-paragraph form letter.

Ms. Sneade, who has since moved, got the letter in the mail last month. It states Officer Rojas had "acted lawfully and properly." Police previously had said the dog was snarling and advancing on Officer Rojas when he fired to protect himself, an account disputed by Ms. Sneade.

It isn't clear how many complaints have been lodged against the veteran officer, but several have previously been reported in the media.

Roxanne Harding, Officer Rojas' former girlfriend and the mother of his son, filed one several years ago alleging he harassed her and her husband and twice threatened to kill him. The police chief at the time, Gerald J. Vizzo, found that Officer Rojas had inappropriately accessed the police file of Mrs. Harding's husband but said there wasn't enough evidence to sustain the allegations of harassment and threats. Her husband later filed another complaint, claiming Officer Rojas jumped into his car and choked him in 2003.

In 2007, community activist Kevin Ksen filed an internal affairs complaint against Officer Rojas and Officer Michael Tarckini, alleging the men swore at him, erased video footage in his camera and unjustly arrested him and another activist while they handed out leaflets on Sycamore Street.

A police spokesman said Officer Rojas wasn't allowed to speak to the media, and Chief Gemme said he can't discuss specific complaints against individual officers.

"If people violate the rules and regulations and the laws of the commonwealth," Chief Gemme said, "we take appropriate action."

http://www.telegram.com/article/20080720/NEWS/807200408/1116
 
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