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Some of these Law Enforcement Corporations have apparently incorporated as 501(c)(3) organizations. And it's here that we run into problems. The LECs are claiming that the 501(c)(3) status means that they're private corporations, not government agencies. And therefore, they say they're immune from open records requests. Let's be clear. These agencies oversee police activities. They employ cops who carry guns, wear badges, collect paychecks provided by taxpayers and have the power to detain, arrest, injure and kill. They operate SWAT teams, which conduct raids on private residences. And yet they say that because they've incorporated, they're immune to Massachusetts open records laws. The state's citizens aren't permitted to know how often the SWAT teams are used, what they're used for, what sort of training they receive, or who they're primarily deployed against.
This really is amazing, and one of the most cynical things I've seen a government agency try and do. They're not even claiming exemptions from open records requests under FOIA. They're simply saying FOIA doesn't apply to them. They're dishonestly attempting to bootstrap aspects of corporate law onto their operations and then hiding from public scrutiny behind the veil of incorporation.
It also raises some interesting questions regarding the officers' qualified immunity under state law. Pretending to be a private corporation to avoid freedom of information requests is one thing, but wouldn't that also mean giving up other things in the bargain?
The claim by the Massachusetts LECs in response to the ACLU's demand under Freedom of Information laws is a cute attempt to twist corporate law with public authority law, but it is sheer, unadulterated nonsense. They can be one or the other. They cannot, by definition, be both.
The curious question is that if a cop claims to be exercising police authority on behalf of a private entity, does he lose qualified immunity for his actions, and subject himself to the same tort law as anyone else? It would seem so, not because he's right about working for an LEC private corporation, but because he subjectively disavows the protections he would otherwise have if he functioned under the authority of the state. He has effectively stripped himself of immunity, as well as authority.
The curious question is that if a cop claims to be exercising police authority on behalf of a private entity, does he lose qualified immunity for his actions, and subject himself to the same tort law as anyone else? It would seem so, not because he's right about working for an LEC private corporation, but because he subjectively disavows the protections he would otherwise have if he functioned under the authority of the state. He has effectively stripped himself of immunity, as well as authority.
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