In May, Middlesex District Attorney Marian T. Ryan released a 16-page report that she said detailed results of an independent review of how her office handled the case against Jared W. Remy, who had been arrested on charges of assaulting his girlfriend two days before he killed her.
“I said I would release the findings after the case had concluded,” she said in a statement published on her website May 27, the same day Remy pleaded guilty to the murder of Jennifer Martel.
But the report was not complete. In a possible violation of the state’s public records laws, Ryan’s office withheld 19 pages, which included summaries of interviews with prosecutors and victim advocates about the Aug. 14, 2013, arraignment of Remy following his arrest for smashing Martel’s head into a bathroom mirror.
Ryan’s office also withheld the report’s table of contents, making it impossible for the public to know that portions of the review were excluded. Late Thursday afternoon, Ryan’s office released the missing pages to the Globe following a public records request for the document.
Ryan said that when she released the findings in May, she was under no obligation to provide the employee statements and other information that was excluded.
“When I elect to release something that I haven’t been compelled to release, it’s fully in my discretion to release what I’m going to release,” Ryan said in a telephone interview Thursday night.
She said she withheld the summary of interviews with employees, who are identified in the report only by title, because she had told them to speak openly to the lawyers conducting the review.
“I asked members of my staff to speak freely, to speak candidly, to have no fears of any repercussions about anything they said,” she said, adding that she did not want to violate their trust.
The state’s open records law makes it clear that a government agency that withholds parts of a requested public document must state what was withheld and why, said Robert Bertsche, chair of the media law group at Prince Lobel Tye in Boston.
That transparency is crucial so that the public has the opportunity to challenge an agency’s decision to withhold information, he said.
“The public records law is not supposed to be a game of cat and mouse,” Bertsche said. “When [public agencies] withhold a document and don’t tell you, that’s really a failure of the system, and that’s when we stop trusting government.”
Ryan commissioned the report after her office was criticized because prosecutors did not request bail when Remy was arrested on charges that he assaulted Martel. In December 2013, when the report was completed, Ryan released a two-page executive summary of the review, which found that the office was deficient in its handling of the case. A news organization then requested the full report, but Ryan’s office denied the request, saying the case was still open.
The Waltham News Tribune appealed to Secretary of State William Galvin’s office, which sided with the district attorney. But, in a March 14 letter, Supervisor of Records Shawn A. Williams said, “Once the investigation is complete, the responsive records must be made available, subject to the provisions of the Massachusetts Public Records Law.”
In May, when the 17-page report was released, there was no mention of employee interviews and no table of contents. The authors, former Essex district attorney Kevin Burke and Norfolk First Assistant District Attorney Jeanmarie Carroll, found that those involved in Remy’s assault case should have paid closer attention to “critical information,” including Remy’s violent past and his troubled mental state, in deciding whether to seek bail.
The Globe requested the complete report after receiving a tip that pages were missing. The report features lengthy summaries of interviews with eight employees, including the victim witness advocate assigned to the case, the assistant district attorney who handled the arraignment, and his district court supervisor. All three said they believed they had taken all the necessary steps to make a sound decision about whether to recommend high bail for Remy or to ask for a dangerousness hearing, which could have allowed the court to hold Remy for up to 90 days.
“The district court supervisor told the ADA she understood how he made that decision based on what was known and that she might have done the same,” according to the full report released Thursday.
Ryan said she did not believe the original request from the News Tribune compelled her to release the entire document.
“I had consulted with our Appeals Bureau and their opinion is that a [records] request does not resurrect when the open case is disposed and closed,” Ryan said. “I didn’t release this report because of [a media request]. I purposely released it voluntarily.”
But by not revealing what was withheld from the full report, she could be seen as misleading the public, Bertsche said. “Put the law aside, it sounds like a lack of candor on the part of a public official to say the least.”
In the Remy case, where public outcry was so strong that some called for Ryan’s resignation, it was especially important to be forthright about what might have gone wrong, said Harvey Silverglate, a civil rights attorney.
“This was a case in which we were entitled to know whether or not a catastrophe could have been averted,” he said. “Maybe it couldn’t have been, but we’re entitled to know that.”
Lisa McGovern, a former Middlesex assistant district attorney who prosecuted Remy for murder, said that Ryan called her and other prosecutors into a meeting May 23, four days before Remy was expected to plead guilty. Ryan planned to release the report May 27, coinciding with Remy’s expected plea.
McGovern said Ryan was worried people would read the employee statements and ask why she had not fired the employees involved in Remy’s assault case.
McGovern resigned soon after Remy’s conviction because she said she could no longer work for Ryan. She is now supporting Michael Sullivan, Ryan’s opponent in the Sept. 9 Democratic primary.