Whistleblower Kempthorne counters DA Harrington's claim on records release

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PITTSFIELD — When Jeanne Kempthorne released public documents about a politically fraught investigation, she said she acted in defiance of Berkshire District Attorney Andrea Harrington, who initially had instructed her not to respond.

Kempthorne, the DA's public records officer and general counsel, resigned last week from the District Attorney's Office over Harrington's continued resistance to releasing the public documents.

Kempthorne pushed back this week against Harrington who, in a WAMC radio interview, laid claim instead to having authorized the release of the documents.

If anything, Kempthorne said, she "irritably acquiesced."

She also said Harrington's statements misrepresent public records law as it pertains to documents from state police, and she challenged the DA's characterization of her tenure in the office as "rocky."

Kempthorne said the public records dispute was the last straw, and that 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.

The Eagle filed a public records request for communications between the District Attorney's Office and officials at Bard College at Simon's Rock concerning a student's claim that she had been racially attacked on campus.

The costly law enforcement investigation into the racially charged issue was a thorny one for Harrington, and she ultimately decided in mid-November not to press charges against the 18-year-old student for the hoax.

The Eagle sought the records to help gain some insight into the reported assault and conclusion that it was false — a series of events that rattled the student body and community.

In the days that followed The Eagle's story, WAMC aired its interview with Harrington in which she gave rebuttals to Kempthorne's claims.

Harrington would not speak directly with The Eagle for its story, which broke Jan. 16 on berkshireeagle.com. She had called The Eagle's editor to quash the story, but she was denied.

But, through a spokesman, Harrington denied any wrongdoing.

This week, Kempthorne responded to Harrington's claim.

"She did not approve [the documents]," Kempthorne said.

No legal reason

Kempthorne said she could find no legal reason to justify holding back the emails and fought Harrington's contention that they not be released.

During a meeting, Kempthorne said, Harrington was "silent" and "annoyed" by her decision to send those documents to The Eagle despite Harrington not providing approval.

"There absolutely never was a [substantive legal] discussion except an email exchange," Kempthorne said.

In an email thread from Jan. 8 and Jan. 10 obtained by The Eagle, Harrington told Kempthorne that the District Attorney's Office would not be producing the documents to The Eagle, and that her spokesman would handle delivering that response to a reporter.

When asked for comment about Kempthorne's specific assertions, Andrew McKeever, the spokesman, said he would not comment on "a back-and-forth on a personnel issue." But, McKeever was adamant that Harrington did ultimately authorize the release of documents, despite some disagreement in the office.

"She approved it — that's the bottom line," McKeever said.

Speaking on the radio, Harrington said there was no harm done because her office ultimately provided the documents to The Eagle.

"There's no `there' there," she said, dismissing the suggestion that her office acted improperly. "We did turn over the request records."

Kempthorne challenged that assertion, though, likening it to President Donald Trump's response to charges that his administration withheld security aid for Ukraine.

"That's like the Ukraine issue," she said. "You [eventually] gave the money, but you gave the money after [being exposed]. Had [Harrington] been left to her own devices, she would not have turned it over."

Kempthorne, who was appointed by Harrington after her election in 2018, said it was Harrington's response to the request for the Simon's Rock emails that was the "straw that broke the camel's back" and set off her decision to resign.

She said Harrington is running a political rather than legal office, and that she had marginalized Kempthorne, "silo-ed" her and ignored her legal advice as general counsel. Kempthorne also said Harrington was supportive of her work as chief of appeals, and that she supports Harrington's reform initiatives.

Kempthorne, 63, gave Harrington one month's notice so that she could organize a transition that would include managing outstanding appeals and other records requests. But, two days later, Kempthorne suddenly was told to clean out her office, did so while supervised and was marched out of the building.

Calling the District Attorney's Office atmosphere a "campaign culture," Kempthorne said Harrington was acting in her own interest, rather than that of the public's, when, in an email exchange with Kempthorne, Harrington said the office would not respond to The Eagle's request, and that she would rely on McKeever.

"We are not responding to this request," Harrington wrote Jan. 8. "Andy will handle this."

But, after several exchanges Jan. 10 in which Kempthorne told her that she could find no legal grounds to withhold them, Harrington said, "I agree," though she expressed lingering concerns about whether it was proper to reveal state police communications.

Kempthorne redacted the emails and sent them to The Eagle on Jan. 10, despite McKeever having told a reporter in a phone conversation that nothing in The Eagle's Dec. 16 records request would be provided.

"I strongly urge Andy to call [reporter] back and advise her that he misspoke," Kempthorne wrote Harrington. "I want to produce these ASAP."

The email to The Eagle already had passed the 10-working-day response time required by state law.

Kempthorne, a lawyer of 36 years who once served on the state's Ethics Commission, countered other claims Harrington made in her WAMC interview, including that no complaints or appeals pertaining to the District Attorney's Office's handling of public records had been made to the Secretary of State or the District Attorney's Office itself in Harrington's first year in office.

Complaints made

Although she has lost access to her records since her departure, Kempthorne said there were two or three complaints or appeals made to the Secretary of State's supervisor of records, and at least one was made directly to the District Attorney's Office, a pushback from a Boston Globe reporter about the release of docket numbers.

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Kempthorne called the latter a "respectful, professional" questioning, and Kempthorne said she later resolved the situation after studying the case law.

"It's just false that we never had anybody complain," Kempthorne said.

"It's never been an issue"

Harrington said on WAMC and in her email exchange with Kempthorne that her hesitancy to produce the emails was based on the concern that it could interfere with the needs of state police, since some of the Simon's Rock case correspondence contained emails from state police Lt. Detective Ed Culver. Harrington wondered whether those requests had to go through the state police instead.

Kempthorne said this has "never been an issue," and that state police emails that regularly come through the District Attorney's Office instantly become public records because the office receives them. She said she applies the law to all records requests "case by case."

"It's always about the scope of privacy," Kempthorne said. "The hardest questions are about the investigative exemption."

Kempthorne said that complicated issues do exist, particularly related to CORI, or Criminal Offender Record Information, but "this isn't it."

"The interface between CORI and public records is really a mess — that's legitimate," Kempthorne said. "But, this isn't what's happening here. This [state police question] isn't an area of struggle."

In the email thread, Kempthorne responded to Harrington's concern that it was her understanding that Massachusetts State Police emails are exempt and "must go through MSP."

"These are documents in our possession, so any exemption for the MSP is inapplicable," Kempthorne replied. "But, what exemption? ... These are not even internal police records. These are copies, sent to this office, of communications with non-police, non-victim third parties."

But, she told The Eagle that she was frustrated by the lack of legal justification in Harrington's concerns about releasing state police emails to college officials, despite Kempthorne's assurances as public records officer.

"They are not witness statements, they are not work product, they are in no way privileged, indeed, they are not even investigative materials," she wrote to Harrington on Jan. 8. "They are reports to school administrators. I can't think of a basis not to produce them."

Kempthorne then proposed redacting the name of the student who claimed that she was attacked, as well as other identifying information.

No excuse to withhold

Jeffrey Pyle, a First Amendment lawyer with Boston-based Prince Lobel Tye LLP, agreed with Kempthorne's analysis.

"Public record law applies to every document and every record that is in the possession of a public entity," he said. "The DA is a public entity."

Pyle said he understood why Harrington might want to consult with the state police investigator to determine whether the release might threaten an investigation that "is ongoing in a real sense."

But, he said that the record's origin from another agency is no excuse to withhold documents.

And, he added, Harrington even has the discretion to release records, even if those records do not have to be released under law.

"Unless a specific statute prohibits the release," Pyle said.

Pyle said that without this statutory prohibition, a decision to give the state police control of records would speak clearly to an official's stance on open government.

"A DA who is committed to transparency would not outsource public records decisions to the MSP, which is a notoriously secretive agency," Pyle said.

Pyle noted that, in 2015, the group Investigative Reporters and Editors, which advocates for open government, awarded the Golden Padlock Award to the Massachusetts State Police for the agency's persistent clampdown on public documents.

And, Pyle further said that the investigative exemption applies to material that would "threaten law enforcement interest," and that simply saying that an investigation still is open is not an excuse to withhold information from the public.

'Rocky' tenure

Kempthorne disputed Harrington's comments on WAMC that her tenure was "rocky" and that she was a "disgruntled ex-employee."

"It is a baldfaced lie," Kempthorne said.

Harrington always had expressed gratitude for her service, according to Kempthorne.

Upon naming Kempthorne and others to the senior leadership team at the District Attorney's Office in 2018, Harrington called the group an "experienced and talented group of prosecutors" who "are recognized as statewide leaders in the legal community."

In April 2019, Harrington told McKeever, who was then the reporter covering Harrington for iBerkshires, that Kempthorne's roles were part of her new administration's freshening of the District Attorney's Office.

"Jeanne Kempthorne was brought on as chief of appeals, to serve as legal counsel, and to head the ethics office — the latter two roles are new to the Berkshire County," McKeever wrote in the iBerkshires story headlined "100 Days: An Interview With District Attorney Andrea Harrington."

McKeever quoted Harrington: "We changed the leadership in the office. It was important to have leaders who believed in the values and the mission that voters voted for."

Kempthorne, a graduate of Harvard/Radcliffe College and Berkeley Law School, had spent 11 years in the U.S. Attorney's Office in Boston as part of the major crimes unit, economic crimes unit, and chief of the public corruption and special prosecution unit. She spent her other 25 years in law in private practice, where her specialty was appeals and post-conviction work.

On Wednesday, Kempthorne was lauded in a letter to the editor of The Eagle. That letter, headlined "Kempthorne put ethics before career," was signed by eight public defenders in the Amherst law firm of Molly Ryan Strehorn, all of whom have been assigned cases from Berkshire County.

"We need more people who adhere with faithfulness and bravery to a strict moral compass," they wrote. "As public defenders, we hope to come across people like Jeanne Kempthorne who do simple things like: promptly reply to requests, openly state reasons for opposition, and adhere to legal guidelines. We need people like Jeanne Kempthorne in order to make this judicial system function. The fact that she had to choose between her values and her career is a sad testament to the failures of this system."

Kempthorne said it was a walk in the woods with a friend the weekend after the tussle over the Simon's Rock emails that made her realize she had to resign and blow the whistle.

"I think [Harrington] should have come to me and said, `Jeanne, you've raised some serious issues,' but she did not," Kempthorne said. "I went for a walk at Canoe Meadow. There's nothing like the woods to let the light in."

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


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