Text of Judge's TRO Order in Occupy Boston Case

Superior Court Judge Frances A. McIntyre issued her order today in Occupy Boston v. City of Boston, granting a temporary order restraining the city from removing Occupy Boston protesters from Dewey Square. Notably, the judge concluded that the protesters were likely to succeed in their claim that their occupation of Dewey Square is a form of speech protected by the First Amendment.

Read the full text of today's order: Occupy Boston v. City of Boston.

AG OKs Remote Participation in Public Meetings

Members of government boards and commissions in Massachusetts will now be able to participate in meetings remotely, using audio or video conferencing, under open-meeting regulations approved today by Attorney General Martha Coakley.

The regulations, 940 CMR 29.10, were announced today and take effect tomorrow, Nov. 11.

Before any committee member can take advantage of the new regulations, the procedure must be adopted by the applicable government body. For local cities and towns, the mayor or board of selectmen must OK remote participation before any local board can use it. State boards can adopt the procedure by majority vote.

The regulations set out three requirements for remote participation:

1. Members who participate remotely and all persons present at the meeting location must be clearly audible to each other.
2. A quorum of the body, including the chair or, in the chair’s absence, the person authorized to chair the meeting, must be physically present at the meeting location.
3. Members who participate remotely may vote and are not considered absent.

Under the regulations, remote participation will be allowed only when a member's physical presence at the meeting is "unreasonably difficult" due to one of five reasons:

• Personal illness.
• Personal disability.
• Emergency.
• Military service.
• Geographic distance.

Once remote participation is approved for a meeting, then the regulations require that the following procedures be followed:

• The member who wishes to participate remotely must, as soon as reasonably possible prior to a meeting, notify the chair of his or her desire to do so and the reason.
• At the start of the meeting, the chair must announce the name of any member who is participating remotely and the reason. The information is also to be recorded in the meeting minutes.
• All votes taken during the meeting must be by roll call.
• The remote member may participate in an executive session, but must state at the start of any such session that no other person is present or able to hear the discussion at the remote location (unless the board votes to approve the person's presence).
• When feasible, the chair should distribute to remote participants, in advance of the meeting, copies of any documents or exhibits likely to be used during the meeting.

Changes to the open meeting law that took effect on July 1, 2010, gave the AG exclusive authority for the law's enforcement. Those changes gave the AG the discretion to authorize remote participation, provided absent members and all persons present at the meeting are clearly audible to each other and that a quorum is present at the meeting location.

SJC Cases Test Media Access to Courts

The Massachusetts Supreme Judicial Court is slated to hear arguments this week in a series of cases that test news media access to court proceedings and documents.

On Tuesday, Nov. 8, at 9 a.m., the SJC will hear two cases, both arising out of the experimental OpenCourt project designed to make Quincy District Court more accessible to the public. Both cases challenge the right of OpenCourt to webcast criminal proceedings live and to archive webcasts on the Internet.

In one of the two cases, Charles Diorio v. First Justice of the Quincy Div. of the District Court Department, Diorio contends that OpenCourt's broadcast of his arraignment and archiving of the footage violated his constitutional right to a fair trial because identification would be an issue at the trial. In the second case, Commonwealth v. Norman Barnes, the district attorney challenges OpenCourt's archiving of an evidentiary hearing in which the identity of a child sexual assault victim was disclosed.

In both cases, WBUR-FM, the Boston University public radio station that operates OpenCourt, argues that any restrictions on it webcasting and archiving would constitute prior restraint in violation of the First Amendment.

On Wednesday, Nov. 9, at 9 a.m., the SJC will hear another media-access case, coincidentally also arising out of Quincy District Court, William O'Connell v. Criminal Clerk of Quincy District Court. The issue in this case is whether affidavits and other materials filed in support of a search warrant are public documents.

The appeal results from a request by The Patriot Ledger in Quincy to terminate an impoundment order covering documents filed in support of a warrant to search O'Connell's condominium. O'Connell's principle argument in support of maintaining the secrecy of the documents is that they involve allegations of rape and sexual assault. But the District Court judge, in lifting the impoundment order, ordered that any references to the alleged victim be redacted to protect her privacy.

In the O'Connell case, the Massachusetts Newspaper Publishers Association has filed an amicus brief, in conjunction with the New England Newspaper and Press Association, the Citizen Media Law Project and the New England First Amendment Coalition.

All of the arguments at the SJC this week will be webcast.

Federal Court in Boston to Announce New Rules on Cameras and Coverage Today

The chief judge of the U.S. District Court for Massachusetts, Mark L. Wolf, will meet with members of the news media today to announce two new initiatives with regard to coverage of the court. According to an announcement from the court, Judge Wolf will discuss the following:

• Cameras in the courtroom. Effective Oct. 17, 2011, the court will become one of 14 pilot courts to participate in a three-year study of the use of cameras in the courtrooms for civil cases in which the parties have consented to recording. The recordings will be made publicly available on www.uscourts.gov.
• Virtual Press Box. The judges of the court have approved expanded access to the court’s electronic case filing system (ECF) by approved holders of a media ID issued by the court. Upon approval of an application for a Virtual Press Box (VPB), the holder will be able to obtain a “read only” ECF account and receive email notification of all activity in cases he or she may choose to follow.

AG Launches Searchable Site for Open Meeting Rulings

After taking over enforcement of the Massachusetts Open Meeting Law last year, Attorney General Martha Coakley launched a portion of her website devoted to the new law, www.mass.gov/ago/openmeetings, and later began posting the determinations issued by her office in response to complaints under the law.

Now that site has taken a major step forward in usability by adding an OML Determination Lookup feature. Before, you could only browse determinations by name of case. That told you nothing about the issue involved in the case. Now, the site lets you search for key terms or phrases or by actions ordered. You can also search by city or town, county, or public body.

20 Mass. Newspapers Publish Joint Editorial Calling for Stronger Access Laws

Today, 20 daily newspapers in Massachusetts took the unprecedented step of publishing the same editorial, one calling for stronger public records and open meeting laws in Massachusetts.

Links to all the editorials are compiled at the Massachusetts Newspaper Publishers Association website.

Open Meeting Advisory Commission to Meet Sept. 8

The Open Meeting Law Advisory Commission is meeting Thursday, Sept. 8, 2 p.m., 100 Cambridge St., 2nd Floor, Conference Room A, Boston.

Here is the notice of meeting and agenda: OMLAC Notice of Meeting 09-08-11. The meeting is open to the public.

(I sit on the OMLAC as the representative of the Mass. Newspaper Publishers Association.)

Hearing Tomorrow on Proposed Regs to Allow Remote Participation in Public Meetings

The Attorney General will hold a public hearing tomorrow, Sept. 6, on proposed regulations that would allow members of public boards and commissions to participate in meetings remotely under certain circumstances.

The proposed regs would allow a member to participate remotely only for:

• Personal illness.
• Personal disability.
• Emergency.
• Military service.
• Geographic distance.

The regs would require that a quorum be physically present at the meeting location and that remote participants be clearly audible to everyone in attendance at the meeting location.

The public hearing on the proposed regs is 4 to 6 p.m. and will be held at One Ashburton Place, 21st Floor, Boston. You can obtain a PDF of the proposed regulations here: Request for Comment on Proposed Regulations.