DA's office whistleblower resigns over public records issues, 'campaign culture'

Jeanne Kempthorne and Andrea Harrington

PITTSFIELD — The Berkshire district attorney's general counsel and public records officer has resigned after she said Andrea Harrington attempted to block the release of public records in a politically fraught case.

Jeanne Kempthorne, who advised the district attorney on legal matters and served as the office's public records officer, also said Harrington routinely ignored her legal advice and ran a "campaign culture" in the office — an atmosphere that places political concerns above the public's right to information.

On Dec. 16, The Eagle filed a formal request for the public records, seeking emails about an inactive investigation into the now-debunked claim by a Bard College at Simon’s Rock student that she was racially attacked. A process that should take 10 workdays to release, the District Attorney’s Office had repeatedly denied The Eagle access to these public records.

"It was the straw that broke the camel's back," Kempthorne told The Eagle in an interview Thursday.

"My concern is that what she did was not in the public's interest; it was in her interest," Kempthorne said. "This isn't a private company, and it's not her campaign. There are bigger considerations — are we actually going to fulfill our public duties?"

The costly investigation into the racially charged issue was a thorny one for Harrington, and she ultimately decided not to press charges against the student for the hoax.

Harrington, through her spokesman, denied wrongdoing.

Kempthorne said she submitted her resignation Monday with one month's notice.

"Recent events have cast into stark relief the differences in our views of my roles as general counsel and records access officer," she wrote to Harrington.

Initially, Harrington said she was concerned that she might not be able to replace her that quickly, according to Kempthorne. But by Wednesday, Harrington asked her to clean out her office — while supervised — and Kempthorne was escorted out of the building.

Kempthorne said she learned Deputy District Attorney Richard Dohoney, a Berkshire lawyer who served as Pittsfield's city solicitor, would replace her.

In a Jan. 8 email exchange provided to The Eagle, Harrington instructed Kempthorne not to release the public records to The Eagle. Ordinarily, Kempthorne, as the public records officer and general counsel, handles all public records requests.

"We are not responding to this request," Harrington wrote to Kempthorne.

"How do we not respond?" Kempthorne wrote back.

The public's interest

Kempthorne said she could find no legal reason to justify holding back the emails between the District Attorney's Office and Simon's Rock officials.

Kempthorne ultimately decided on her own to provide redacted copies to the Eagle on Jan. 10 — after Andrew McKeever, the spokesman for the District Attorney's Office, told a reporter that the office could not release the requested information.

Kempthorne said that had she not produced the records, she would have committed not only an ethical violation, but also possibly have broken Massachusetts Public Record Law.

"I've never done anything in the job that I never felt wasn't right," she said. "There's nothing that I would not do to get it right."

The District Attorney's Office said that attempting to circumvent the records access officer in this case does not breach the law.

But Jeffrey Pyle, a lawyer at Prince Lobel Tye LLC and an expert in public records law, called Kempthorne's allegations "remarkable."

Pyle said that in his 19 years of practice on First Amendment litigation, he never has seen a case like this.

"This is a very serious allegation of improper withholding of public records, and I've never seen a whistleblower within an agency come forward with such an allegation," Pyle said Thursday in a phone interview. "This is a highly unusual case."

Harrington would not comment directly Thursday. But McKeever, in an email responding to Eagle questions, said the District Attorney's Office is committed to transparency. There had been a disagreement over whether releasing the emails would cross lanes with the jurisdiction of the state police, which had worked the case. State police assigned to the Berkshire District Attorney's Office conducted the investigation.

McKeever said the press office is "always part of public records requests."

There is an exemption to the public records law that allows agencies to withhold information that would be detrimental to the work of law enforcement, but not every pending investigation is subject to that exemption, Pyle said.

The Eagle had sought the emails between the college and the District Attorney's Office to gain some insight into the reported assault and conclusion that it was false — a series of events that rattled the student body and community. The office has said it is essentially dropping the active investigation for lack of evidence because the student refused to cooperate, but the investigation technically remains open, making the final report exempt under the records law.

But McKeever said that even closing an investigation doesn't necessarily render its reports public record.

"Under the public records law, investigatory materials may remain confidential indefinitely if they contain confidential investigative techniques or information that would identify private witnesses," he wrote.

Justin Silverman, executive director of the New England First Amendment Coalition, said it would be "simply inexcusable" for public officials to attempt to abuse the public records law and its exemptions.

"Falsely claiming an investigation is ongoing as a way to keep records secret violates the law and our trust in public officials," he said. "When officials abuse the investigatory exemption of the public records law, they prevent us from learning if justice is being served in our communities. They also weaken the credibility of those who will use the exemption to protect actual investigations in the future."

Pyle noted that in cases where there is no whistleblower, like Kempthorne, the requester wouldn't know that the investigatory exemption is being misused.

"This is a classic circumstance where an individual requester, who doesn't have a whistleblower, would be frustrated," he said.

Experienced attorney

After her 2018 election, Harrington tapped Kempthorne, 63, for the key role in her office, citing her 36 years of experience that include 11 years as a federal prosecutor in Boston, where she was part of the Major Crimes Unit, the Economic Crimes Unit, and chief of the Public Corruption and Special Prosecutions Unit. With her permanent home still in Salem, Kempthorne moved to Pittsfield to take the job.

As chief of appeals, Kempthorne said, Harrington supported her initiatives, including reforms for young offenders.

"She let me do some great things," she said. "We did the first ever expungements. We acquiesced to DNA testing in two cases — I was very proud of that. I really felt like I was doing great work, work that the public wanted and expected her to do, and it really took courage. I do compliment her for her grit and her courage."

But Kempthorne, a former commissioner on the State Ethics Commission, also said she grew frustrated by Harrington's attempt to place her into a silo, where her role as general counsel was marginalized around certain issues. She said Harrington told her it is important to cultivate relationships in the public realm, especially with news media.

Kempthorne said she told Harrington that the work was about legal precision.

"You can't run the office like a campaign," Kempthorne said she told Harrington. "It's not about relationships — it's about the letter of the law."

Kempthorne said coming forward in the public's interest could be a career-ending move for her. She said she "has nothing to lose."

"I actually do think this is the people's business and there might be some repercussions for me," she said. "It's my obligation to get [this work] done right, and the political function is interfering with me doing my job."

Heather Bellow can be reached at hbellow@berkshireeagle.com or on Twitter @BE_hbellow and 413-329-6871.