November 19, 2019:- When the Massachusetts Commission Against Discrimination (MCAD) stopped producing documents in response to Attorney J. Whitfield Larrabee’s public records requests, Attorney Larrabee sued. The MCAD said that it had changed its policy, and that from now on it would only produce information about closed cases, not open ones. Today the Appeals Court held that it is duly promulgated regulations that govern, not a unilateral policy adopted without notice and comment.
Justice Sullivan’s opinion states that the agency’s new policy conflicts with its regulations and that it must, in accordance with the regulations, produce the documents. My favorite excerpt is the following:”A regulation controls over policy statements or guidelines that conflict with the regulation… If the MCAD wishes to consider recalibrating its policy regarding public disclosure, it must follow the amendment process.”
In case any of my students are reading this, I point out that this case provides an example of why you should read the footnotes, which are there for reading not decoration. In footnote 7 the court deals with the MCAD’s argument that public disclosure of open cases will lead to respondents retaliating against complainants: The argument does not hold water because Respondents know about the complaint from the outset when the MCAD serves them with it.
Today’s decision makes this a good day for open government and the rule of law.
P.S. November 19, 2019: I just filed my own public records request with the MCAD for pending charges filed so far this year in the commission’s Springfield office. I will keep you posted.