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Larrabee v. Massachusetts Commission Against Discrimination

Appeals Court of Massachusetts, Suffolk

November 19, 2019


          Heard: March 8, 2019.

          Civil action commenced in the Superior Court Department on September 10, 2015. The case was heard by Rosemary Connolly, J., on motions for summary judgment.

          J. Whitfield Larrabee, pro se.

          Daniel J. Hammond, Assistant Attorney General, for the defendant.

         The following submitted briefs for amici curiae:

          Susan Forward for United States Department of Housing and Urban Development.

          Kevin J. Berry for United States Equal Employment Opportunity Commission.

          Jonathan M. Albano & Emma Diamond Hall for Boston Globe Media Partners, LLC.

          Present: Hanlon, Agnes, & Sullivan, JJ.

          SULLIVAN, J.

         The 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, 10A;[1] 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 requested.[2]


         We 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 agency."

         Amicus 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.

         Until 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.[3] 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.

         In 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.

         Also in 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 ensuing litigation.

         In 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.

         On the 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 ...

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