On May 7, 2014, Anthony Ferrier was viciously beaten by a Massachusetts Bay Transportation Authority Police detective inside a subway station in Boston, and the entire incident was captured by one of the agency’s surveillance cameras—but the public wouldn’t know the truth for nearly a year.
Instead, the public “learned” in the immediate aftermath of the incident that Detective Sean Conway had heroically saved Ferrier from committing suicide; that Conway’s behavior was, in the words of then-MBTA Transit Police Chief Paul MacMillan, “tremendous.” Conway even claimed that Ferrier—who suffered multiple facial fractures at the detective’s hands—had thanked him.
The MBTA actually posted some of the video on YouTube, but the beating was edited out. The video does show Conway grabbing Ferrier, who was intoxicated at the time, as he is about to fall onto the subway tracks. But according to David Milton, a lawyer who helped Ferrier obtain the full video, the MBTA’s suicide narrative might not even be true. Milton said that while he wasn’t sure exactly what Ferrier was thinking, the video suggested that he “lost his balance out of surprise when approached by Conway.”
To get the unedited video, Milton sent a public records request to the MBTA. But the agency refused to provide it, claiming it would reveal confidential law enforcement techniques and the MBTA’s internal deliberations. In October 2014, Milton sued the MBTA, which continued to fight the video’s release, even hiring the law firm Seyfarth Shaw to help with the defense. Eventually, the agency relented and agreed to release the video, which Milton’s law firm published in March 2015.
Even then, the MBTA stood by Conway, claiming the detective’s “quick and decisive actions saved a man’s life.” Richard Sullivan, who is now superintendent of the MBTA police, said, “After careful review of the incident by our Use of Force Committee it was concluded Detective Conway acted appropriately.”
Milton called bull in a television news interview: “The MBTA misled the public and clearly intended to do so. If they truly believe that the officer’s actions were appropriate beginning-to-end, they would have released the entire video and let the public decide.”
And Milton was correct; this was a cover-up, and an incompetent one at that—it would even be funny if a man’s face hadn’t been beaten to a pulp. But how much did this cover-up cost taxpayers? How much of our own money did the scandal-plagued MBTA spend to keep us from knowing that one of its officers repeatedly pounded a man in the face so that it could briefly bask in the glory of a good headline?
That’s what fellow PINAC writer Maya Shaffer and I wondered. So we filed a public records request of our own seeking any documents showing how much the MBTA paid its lawyers to fight Milton’s lawsuit. First, the agency ignored our request, forcing us to send an appeal to the secretary of the Commonwealth’s office. Then, the agency refused to provide us with the records. It claimed that the documents were protected by attorney-client privilege, which is laughable—we asked about legal fees, not legal advice. As Milton, the attorney, put it, “[T]here is no exemption in the public records law for records that show an agency’s gross misuse of public funds. On the contrary, providing citizens with a tool to expose government misconduct is the core purpose of the public records law.”
Suing wasn’t an option for us. Paying a lawyer to litigate a public records suit can cost a bundle, and you can’t get your legal fees back even if you win. The new public records law, which doesn’t go into effect until next year, will allow judges to award attorney’s fees but doesn’t make it mandatory, so lawsuits aren’t likely to become the preferred option for fighting denials any time soon. Instead, we sent a second appeal to the secretary of the Commonwealth’s office, which sided with us and ordered the MBTA to produce the records. But the MBTA didn’t budge. Its staff didn’t even tell us they wouldn’t follow the order; they just ignored it. And they got away with it.
At least they have so far. But I’m happy to report that last week, one year and 20 days after the secretary’s office ordered the MBTA to produce the records, the secretary’s office referred the case to the attorney general.
When an agency violates an order from the secretary of the Commonwealth’s office, the secretary’s office is supposed to forward the order to the attorney general’s office for enforcement. The AGO can sue the agency for the records or file criminal charges against the public officials responsible for the violation. But for years, the secretary’s office refused to work with the AGO.
That changed last year when, after Maura Healey took office as the new attorney general, the secretary’s office referred one of our cases—and only that case—to the AGO. This year, referrals have started to pick up. As we recently reported, the secretary’s office referred two orders in June. Since then, the secretary’s office has referred our MBTA request as well as the Falmouth Firefighter Union’s request for draft versions of a report prepared by a consultant for the town.
So far, the AGO has only taken action on one of the four referrals from this year. That case also involves the MBTA, which refused to provide the Boston Herald a consultant’s report on employee leave practices, citing the same bogus reason it gave us: attorney-client privilege. The AGO ordered the MBTA to produce the records or provide an explanation as to how the records are protected by attorney-client privilege. The MBTA quickly chose the latter, telling Herald reporter Matt Stout that it intends to provide him with a more detailed denial letter. It remains to be seen what the AGO will do in response.
It’s refreshing to finally see some momentum on public records enforcement, but people shouldn’t get their hopes up yet. Take it from me: You can’t count on records until they’re in your hands and you’ve checked them to be sure they’re not covered in black ink. The MBTA’s refusal to release records to the Herald will be a good test of how much Attorney General Healey is willing to do for transparency. And that’s just one case; it’s going to be a while before the anecdotes have a chance to become a trend.
As Milton put it when he published the MBTA beating video: “Government agencies cannot disclose only records that they believe reflect positively on the agency. The MBTA’s attempt to mislead the public by refusing to provide the complete video shows the need for a strong public records law. Agencies now suffer no penalty when they violate the law.” On that note, let’s hope Healey is getting serious about her promise to make public records enforcement a priority so that can finally change.