J. WHITFIELD LARRABEE
MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION.
Heard: March 8, 2019.
action commenced in the Superior Court Department on
September 10, 2015. The case was heard by Rosemary Connolly,
J., on motions for summary judgment.
Whitfield Larrabee, pro se.
J. Hammond, Assistant Attorney General, for the defendant.
following submitted briefs for amici curiae:
Forward for United States Department of Housing and Urban
J. Berry for United States Equal Employment Opportunity
Jonathan M. Albano & Emma Diamond Hall for Boston Globe
Media Partners, LLC.
Present: Hanlon, Agnes, & Sullivan, JJ.
plaintiff, J. Whitfield Larrabee, appeals from a judgment
entered in the Superior Court affirming the Massachusetts
Commission Against Discrimination's (MCAD's or
commission's) decision to deny, in part, Larrabee's
public records request. See G. L. c. 66, §§ 10,
G. L. c. 4, § 7, Twenty-sixth. On the parties' cross
motions for summary judgment, a judge of the Superior Court
ruled that the MCAD was not required to continue to provide
Larrabee with copies of charges in open cases under
investigation or spreadsheets summarizing charge data, based
on a newly adopted commission policy. Because the MCAD's
recently adopted policy regarding the disclosure of charges
in open cases conflicts with its own regulations, we conclude
that the commission is obligated to produce the documents
summarize the evidence in the light most favorable to
Larrabee. See Boston Globe Media Partners, LLC v.
Department of Pub. Health, 482 Mass. 427, 431 (2019);
Augat, Inc. v. Liberty Mut. Ins. Co., 410
Mass. 117, 120 (1991). Since 1999, discrimination complaints
and case data have been provided by the MCAD in response to
public records requests without regard to whether the
investigation of those charges was open or closed. Larrabee,
an attorney who represents employees and tenants in
discrimination matters, has for many years requested from the
MCAD copies of MCAD complaints and spreadsheets compiled by
the MCAD with charge data derived from its case management
database. He uses this information to contact potential
clients, identify witnesses, and identify patterns of
discrimination. Larrabee also stated that he monitors
"the fairness, efficiency, and performance of the
curiae Boston Globe Media Partners, LLC (Globe), has made
information requests to the MCAD and has published articles
on the prevalence of complaints at public agencies and trends
in discrimination complaints against both public and private
employers. Although the requests for data were honored in the
past, the MCAD no longer provides the Globe with data
compilations regarding cases currently under investigation.
December 2006, the MCAD provided Larrabee with copies of
complaints and spreadsheets it had generated containing data,
including the names and addresses of both complainants and
respondents, taken from both open and closed investigations.
In 2007, however, the MCAD declined to provide Larrabee with
the spreadsheet data. Instead, it gave Larrabee paper copies
of complaints in both open and completed investigations.
Larrabee filed a complaint in the Superior
Court. That case was settled in 2009 by agreement
of the parties (2009 agreement). The MCAD agreed to provide
Larrabee with the usual spreadsheet data "for the most
recent three year period." From 2009 through 2014 the
MCAD provided Larrabee with the complaints and spreadsheet
data pertinent to both open and completed investigations in
response to his public records requests.
2015, Larrabee filed a public records request, as he had in
previous years. The MCAD responded that it had changed its
internal policy regarding disclosure of complaints and
aggregate data regarding complaints. Going forward, the MCAD
would disclose complaints pursuant to a public records
request only in closed investigations -- for example, matters
that the MCAD had dismissed administratively, found to be
unsupported, or certified to public hearing, or those that
had been withdrawn to State or Federal court. See G. L. c.
151B, §§ 5, 9; 804 Code Mass. Regs. §§
1.15, 1.20 (1999). The MCAD would no longer provide any
information pertaining to open investigations --that is,
those complaints in which an investigation was ongoing. The
MCAD also produced a compact disc with data from its case
management database regarding closed investigations. Larrabee
sent at least two more public records requests to the MCAD in
2015, and one in 2016, but he received the same response.
2015, the Globe made information requests for pending
complaint data, which the MCAD denied. The Globe appealed to
the Office of the Secretary of the Commonwealth, which
sustained the MCAD's denial of the public records
request. The commission relied on this decision in the
2015, Larrabee filed the underlying complaint in the Superior
Court alleging breach of contract and violation of the
Massachusetts public records law, and seeking injunctive
relief, enforcement of civil and common-law rights, damages,
and attorney's fees and costs.
parties' cross motions for summary judgment, the judge
found that 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. The
judge concluded that although the MCAD's 2015 change of
policy was unexplained and contrary to its previous practice,
the new policy ...