We want to know: When the state launches investigations of people or organizations accused of discriminating on the basis of disability, race, sexual orientation, or gender, that information is of immediate public interest. Opening the records of investigations makes it possible to track patterns of bias and may encourage other victims of discrimination to come forward.
That’s why a recent Massachusetts Appeals court ruling is so important. It forced the state to disclose more information about the discrimination complaints it chooses to investigate. What’s more, it should help victims of discrimination by building trust in the state’s antidiscrimination procedures, a bedrock part of the Commonwealth’s effort to ensure a fair society.
Massachusetts residents who have suffered discrimination in employment, housing, education, and many other contexts can lodge complaints with the Massachusetts Commission Against Discrimination, whose mandate covers discrimination based on race, sex, religion, sexual orientation, disability, and other factors. The commission has the power to award monetary damages, reinstate fired workers, or require accommodations for wronged individuals.
The commission, which received just under 3,000 complaints in 2018, has helped hold high-profile individuals and institutions in Massachusetts accountable, including municipalities, colleges, and the state judiciary. The commission’s investigations are not a formality — plenty of cases do not result in penalties.
And, crucially, its work isn’t secret: Those accused of discrimination are notified as soon as the commission launches an investigation and are given the chance to give their side.
For years, the public had access to the investigations that hadn’t yet resulted in a determination. Since 2015, though, the commission has attempted to put up a wall of secrecy by refusing to turn over information about investigations that it has accepted but not yet decided, refusing public records requests from the Globe and others. In defending its decision to stonewall, the state cited fears that if complaints became public, that could lead to retaliation that would deter other victims of discrimination from coming forward. (Notably, though, the agency could not document any instances of that actually occurring, and the fact that subjects are notified of the investigation would imply retaliation is possible even when records are sealed.)
But when the public can keep an eye on the process, it tends to keep everyone honest. And it builds confidence in the outcome: The public can see that the process is thorough and that the commission isn’t sweeping legitimate cases under the rug or playing favorites.
As the Globe argued in an amicus brief, there are additional benefits of transparency that outweigh the hypothetical harms. The #MeToo era has provided countless examples of complaints inspiring witnesses to come forward to reinforce a complaint with relevant evidence or to make their own. The ability of the public and press to track complaints also makes it easier to spot patterns that can expose bad actors or organizational cultures; the Globe used the data, for instance, to show that the MBTA was the subject of more discrimination complaints than any other entity in the state.
The ruling didn’t rest on those arguments. Instead, Judge Mary Thomas Sullivan, who wrote the Appeals Court decision ordering the agency to comply with public records requests, found that the agency had failed to follow its own rules and had left the door open for the agency to resume blocking access if it does a better job dotting its i’s. “If the MCAD wishes to consider recalibrating its policy regarding public disclosure, it must follow the amendment process,” she wrote.
We urge the commission not to revise its policy. There’s an inherent public interest in making sure proceedings that can result in fines and public ignominy operate in the open. And, in the case of discrimination complaints, it has now become dramatically clear that public attention helps break down the walls of silence that have protected discrimination for too long.