Our Podcast Named Best for Lawyers

For the third year running, Dennis Kennedy's Blawggie Awards have named Lawyer2Lawyer as the best legal podcast. This year, we tied for best with Denise Howell's This Week in Law. Lawyer2Lawyer also won the Blawggie in 2007 and 2006.

Lawyer2Lawyer was recently selected as a top legal podcast by the editors of the ABA Journal and is currently in a neck and neck competition for first place in the ABA Journal's readers' poll. (Please vote if you haven't already.)

Here is what Dennis Kennedy said about L2L:

Bob Ambrogi's and Craig Williams' Lawyer2Lawyer Podcast is the longest-running weekly legal podcast and has more than 100 episodes. They cover many legal topics, which is both a plus and a minus, since an episode might stray outside your area of interest. But they generally do a great job of finding broad enough topics and getting excellent guests on leading edge topics.

Judge Reprimanded for Letters to Publisher

The judge who sent threatening letters to the publisher of The Boston Herald received a public reprimand today from the Supreme Judicial Court. The SJC concluded that Superior Court Judge Ernest B. Murphy violated standards of judicial ethics when he wrote two letters to Herald Publisher Patrick J. Purcell on official court letterhead demanding payment of a more than $2 million libel award. From today's opinion:

It is beyond serious dispute that the letters sent by Judge Murphy do not promote public confidence in the judiciary. Judge Murphy concedes that he should not have used judicial letterhead. But more than stationery is at issue here. Although a judge is not prohibited from communications related to personal litigation, including those in pursuit of settlement, permissible communications must reflect the standards required to be followed by a judge both on and off the bench.

"That the standards imposed on judges are high goes without saying. Because of the great power and responsibility judges have in passing judgment on their fellow citizens, such standards are desirable and necessary and there should be strict adherence to them. Failure on the part of even a few judges to comply with these standards serves to degrade and demean the entire judiciary and to erode public confidence in the judicial process." Matter of Morrissey, 366 Mass. 11, 16-17 (1974). In sending the letters at issue, Judge Murphy did not meet the high standards required of judges.

The full-text of the opinion is here: In the Matter of Ernest B. Murphy, SJC-10179 December 18, 2008.

Salem News: Why the Secrecy?

Commenting on the Haverhill school committee's secret meeting to discuss an overdue electric bill, The Salem News says:

In general, public officials should err on the side of openness rather than privacy. They claim to want the public trust. Conducting business behind closed doors is not the way to gain, or hold, that trust.

Where there is an illegal closed-door meeting in government, there is probably someone trying to cover his or her political butt.

MNPA Annual Meeting: Still Time to Register

The annual meeting of the Massachusetts Newspaper Publishers Association is this Friday, Dec. 5. There is still time to register and you can do so using the 2008 registration form.

The luncheon speaker is retiring Supreme Judicial Court Justice John M. Greaney, longtime cochair of the SJC's Judiciary-Media Committee. Today is his last day at the court before he joins the Suffolk University Law School faculty. (See Saturday's profile of Justice Greaney by AP writer Denise Lavoie.)

The morning panel will explore the legal issues surrounding blogs and comments on newspaper-hosted Web sites. Three experts will share their insights and advice:

• Robert A. Bertsche, Esq., a nationally known media lawyer and partner with the Boston firm Prince, Lobel, Glovsky & Tye.
• David Ardia, Esq., fellow at the Berkman Center for Internet and Society and the director of the Citizen Media Law Project, which provides legal education and resources for individuals and organizations involved in citizen media.
• Ed Kubosiak, editor-in-chief of MassLive.com.
  

The day begins with the MNPA's annual business meeting at 10 a.m., followed by the panel discussion at 11, a reception at noon and the luncheon at 12:30. The event is being held at Anthony's Pier 4 in Boston.

Questions? E-mail info@masspublishers.org.

Two New Open Meeting Investigations

In Brookfield, the Worcester district attorney is investigating allegations that the Board of Selectmen violated the open meeting law twice in as many months, the Worcester Telegram & Gazette reports. Two selectmen are alleged to have participated in unposted meetings on July 8 and Sept. 9. Both allegedly involved private meetings held just prior to or immediately following public selectmen's meetings.

In Harvard, School Committee Chairman Stuart Sklar announced during a public meeting that the district attorney's office is investigating whether the committee violated the open meeting law on Sept. 18, Nashoba Publishing reports. Three of the committee's five members attended a "coffee" at one member's home to receive public input regarding a contract extension for the school superintendent.

The latter item provides this week's classic misinterpretation of the open meeting law. School Committee Chairman Sklar offered this explanation for why he believed no violation occurred: "I was very careful to not speak to [fellow committee member Patty Wenger] when I was there. And if I remember correctly, Patty didn't speak at all."

Boston Globe Newsroom

Cell phone pic taken yesterday during tour.

Several Open Meeting Items Today

A number of open meetings items in the news today:

• Board Cited 3rd Time on Meeting Law. For the third time in a year, the Charlton Water-Sewer Commission has been cited for violating the open meeting law.

• Town Manager Under Fire. Stoughton residents vent anger over perceived open meeting law violation.

• Lodge: Patrick Locks Out the Public. Metrowest Daily News Editor Richard Lodge blasts Gov. Patrick for a series of closed-door meetings with local officials.

• Boston City Council admits open meeting law violations. See the posts here and here from the blog The BIG Campaign, which say that the council has filed a motion that would allow judgment against it in a long-fought (and expensive) open meeting battle.

The Wilkerson Case and the Open Meeting Law

Sen. Diane Wilkerson faces the possibility of prison for allegedly violating the law and the public trust. Yet other public officials involved in this case also may have violated the law and the public trust, but they are unlikely to face any consequences. That is because their violations were of the open meeting law -- one of the few laws on the books that carries no penalties for those who violate it.

The apparent open meeting law violation involves the Boston Licensing Board's issuance of the liquor license that is at the heart of the complaint against Wilkerson. Kevin McCrea wrote about this yesterday at his blog, The BIG Campaign, and Universal Hub picked up on it today. Consider this excerpt from the affidavit of FBI Special Agent Krista L. Corr, which forms the basis for the complaint against Wilkerson. It comes after the affidavit describes Wilkerson's alleged efforts to strong-arm the BLB into granting a license to the planned club Dejavu. References to CW are to the unidentified cooperating witness:

23. Boston Licensing Board "Smoke and Mirrors": On the same day, August 15, 2007, the BLB held a public hearing at Boston City Hall. Dejavu's application for a license did not appear on the agenda that day. Agents attended the public hearing and there was no public discussion of Dejavu's application or a public vote to grant Dejavu any type of license. Despite this, the attorney recruited by WILKERSON later left a message for the CW telling him that "the vote was in" and that the beer and wine license had been approved. When the CW subsequently told WILKERSON in a recorded call that there was no mention of Dejavu's application at the BLB public hearing but that the attorney claimed that the license was granted, WILKERSON responded that the way the BLB did its business was "all smoke and mirrors." The following Monday, August 16, 2007, the CW, at the attorney's direction, called WILKERSON and left her a voicemail message requesting that WILKERSON be "very, very nice" to the BLB Chairman at the meeting scheduled for that day. The attorney subsequently left a message on the CW's telephone stating that he had, "talked to the Senator [WILKERSON] this morning" and told her that the license was "all set."

25. Boston Licensing Board Awards Dejavu a Beer and Wine License: On August 16, 2007, the BLB issued a letter notifying Dejavu that its petition for a malt and wine license had been granted. On the same day, WILKERSON met with the BLB Chairman, the Senate President, the Boston City Council President, and Senator Y to discuss the status of the Dejavu license and related issues. The outcome of the meeting was an agreement that the City of Boston would submit, and WILKERSON would sponsor, legislation which would authorize 40 new nontransferable liquor licenses and 30 new nontransferable beer and wine licenses for the City of Boston. ... It was understood that Dejavu would receive one of these new special liquor licenses, if another one did not become available first, and that WILKERSON would be able to control several other licenses.

Surprising to me is that when I testified before Sen. Wilkerson on the need for open meeting law reform, she spoke forcefully in agreement. As a matter of fact, she co-chaired that hearing on June 19, 2007 -- just one day after the alleged bra-stuffing incident. Here is what I wrote about that hearing at the time:

In comments during the hearing, both Rep. Cabral and Sen. Dianne Wilkerson (D-Boston), the Senate chair, indicated their support for strengthening the enforcement provisions of the open meeting law. When an opponent of the bill testified that officials who violate the open meeting law do so innocently, Sen. Wilkerson responded that her experience suggested otherwise. She has served on numerous boards and commissions, she said, and has seen them "skate close to the edge a lot." Both Sen. Wilkerson and Rep. Cabral appeared to agree that adding penalties and attorneys' fees is necessary in order to enforce the law.

If the allegations against her are true, then even as she condemned officials who "skate close to the edge," she was already well onto the thin ice. Could the BLB's "smoke and mirrors" be the smoking gun that leads to open meeting law reform?

A Call for a Public Access Task Force

I tend to equate the suggestion, "Appoint a committee," with "Avoid a decision." But the more I read about the need for reform of Massachusetts' open-government laws, the more frustrated I get at lawmakers' lack of action. I now believe that this is one problem that appointing a committee could actually help fix. It should be a bipartisan task force, appointed by the governor, with a mandate to study the state's open meetings and public records laws and recommend a concrete slate of reforms. The committee should include state and local government officials, journalists, citizens, lawmakers, law enforcement officials, legal advocates and other interested parties.

Colman Herman's piece in the current issue of CommonWealth convincingly makes the case for the need for reform of the public records law. For the last two legislative sessions (that's four years) I and many others have presented the same case for the open meeting law. As I've argued in op-eds in The Boston Herald and The Boston Globe, in blog posts and in testimony before the legislature, the Massachusetts open meeting laws are among the weakest in the nation, with no consequences for the individual officials who break the law.

The need for reform is hardly breaking news. In addition to my law practice, I am executive director of the Massachusetts Newspaper Publishers Association. When I first took that job in 2004, the first major issue the membership asked me to tackle was public access. Their reporters and readers had complained about the escalating decrease in access ever since 9/11. We decided to focus on open meetings because that was where we saw the greatest need -- or, put another way, where we saw the least compliance with the law. We feared that pursuing an agenda of more comprehensive reform would meet multiple roadblocks.

But as Herman's piece and other recent developments help illustrate, public records and open meetings are not separate issues to be dealt with in different legislative bundles. My sense -- I need to double check my facts on this -- is that most states' laws address access to meetings and access to records in a single legislative scheme. This makes sense. It makes the applicable laws easier to find, easier to understand and easier to enforce. Perhaps this might be the first issue that this task force should take up.

Our state's public access laws are antiquated, unwieldy and often ineffective. If we are to achieve meaningful reform of these laws, there must be thorough study and thoughtful deliberation. That level of careful study rarely occurs in the course of a legislative session. If it is ever going to happen, I have come to believe, it must be through an officially sanctioned task force. Let the task force fashion a reform bill and hope the legislature then has the guts to act on it. In a state that has too long opted to avoid any decisions on public-access reforms, maybe appointing a committee would break the deadlock.

Ambrogi Elected Trustee of Bar Foundation

I am extremely honored to announce that I have been elected a trustee of the Massachusetts Bar Foundation, the premiere legal charity in Massachusetts working to increase access to justice for all people in the state. The MBF is the philanthropic partner of the Massachusetts Bar Association and is one of three charities designated to distribute IOLTA funds to programs that provide civil legal services and that enhance the administration of justice.

I have been a fellow of the MBF since 1992 and a life member since 2002. I have also served on its regional and subject-matter grant-making committees for several years. I was elected to fill the seat vacated by a retiring trustee, Carol Witt of Salem, and as such will serve an abbreviated term through January 2011. MBF President Laurence M. Johnson, a partner with Davis, Malm & D’Agostine in Boston, issued a statement announcing my election in which he said, "Attorney Ambrogi has been an active supporter of the MBF for many years, and we are delighted to welcome him to the Board. He brings a wealth of knowledge that will help the MBF to strengthen its work in promoting equal access to justice in the Commonwealth."

Yet Another Open Meeting Violation

Milford selectman violated "both the letter and the spirit" of the open meeting law when they met privately last summer with a real estate developer to discuss a proposed casino, the Worcester district attorney ruled this week. I take "the letter and the spirit" to imply that the board's violation was not just literal, but also intentional. Hardly matters, given that violations of the open meeting law in this state -- intentional or not -- carry no meaningful consequences.

Read more about the DA's ruling from The MetroWest Daily News, whose editor, Richard Lodge, initiated the complaint over the closed meeting. Notably, all the DA could do to remedy the violation was to order the board to release its minutes. This illustrates the fact that Massachusetts has one of the weakest open meeting laws in the nation in its provisions for enforcement. The Massachusetts Newspaper Publishers Association and others have pushed for the legislature to toughen the law, to no avail.

One of the most frequent arguments against a tougher law is that officials who violate it always do so out of negligence or misunderstanding -- never intentionally. Yet here is another example of a board contorting the clear language of the law in order to cut the public out of the conversation. This was an exploratory meeting to discuss a possible casino development in Milford. It was precisely the sort of subject about which the town's residents had every right to be informed. If only officials would consider the spirit of the law, perhaps they'd be less likely to violate its letter.

As Open Meeting Law Burns, Legislature Fiddles

Massachusetts district attorneys have slapped the knuckles of at least two more town boards for violations of the open meeting law. I wrote here last week about the Worcester DA's ruling that the Charlton board of selectman violated the law by meeting in private to evaluate the town administrator. This week, the Worcester DA found a similar violation by the Harvard School Committee, ruling that it violated the law by conducting a significant portion of the school superintendent's evaluation in private. Not only that, but the school committee kept no written records of the process "so as to avoid public scrutiny," the DA found, according to a report published by Nashoba Publishing Online. Meanwhile, the Norfolk DA -- without expressly finding a violation of the law -- told selectmen in Holbrook that they should discontinue meeting in private to discuss a possible lease of town land, according to Wicked Local Holbrook.

The Massachusetts legislature will soon end a session in which it had its best opportunity in years to pass meaningful open meeting law reform. Rep. Antonio Cabral of New Bedford worked hard to put together a substantive bill. The AG had crafted her own bill. Rep. Cabral had brought a range of interest groups to the table to try to work out their differences -- from municipal lawyers to media groups to public interest groups. But the bill seems sure to die due to disinterest among legislative leaders.

In these waning days of the session, the legislature has found the time to debate an official state novel, pass a law freeing golf courses to sell alcohol anywhere on the course, designat a rock in Fall River as the state's official glacial rock, exempt certain antique-car seats from the seat belt law, and authorize Lynn to license a florist to sell alcohol. But it is unable to find the time to address the urgent need to clarify and strengthen the open meeting law.

A Worcester Telegram editorial this week said that public officials should easily understand the law's clear mandate: "to give the public maximum access to public decision-making. Excluding the public from decision-making -- via executive sessions, e-mail exchanges, chats at the local coffee shop or through an elaborate pre-evaluation procedure -- is a violation of the letter and spirit of the law." If only it were that easy. Unfortunately, whether negligently or intentionally, public officials routinely violate the open meeting law. Unless and until the legislature acts to clarify the law and give it some teeth, the violations will continue.

DA Says Town Broke Open Meeting Law

Worcester District Attorney Joseph D. Early Jr. has ruled that the Charlton, Mass., board of selectmen violated the open meeting law by meeting in private to evaluate the job performance of Town Administrator Robin Craver. The DA was acting on a complaint filed by the Telegram & Gazette, which reported the ruling in an Oct. 11 story, Town Manager Evaluation Ruled Illegal. In an Oct. 7 letter, the DA's office notified the selectmen that, in its opinion, the law requires performance evaluations of high-level public officials to be conducted in open session.

The case is interesting in that the selectmen sought to avoid an actual meeting. Instead, the chair sent out a summary evaluation and each board member reported back to the chair with comments. The chair compiled their feedback into a final evaluation, which he then discussed with the town administrator. Only after finishing the evaluation process did the chair read the summary evaluation at a public meeting.

The DA said that, even without a meeting, this process violated the law "by conducting the significant portion of the evaluation of the Town Administrator through a wholly written process that excluded the public." The letter continued: "The Legislature did not intend to allow Boards to shield their deliberations regarding performance evaluation of high-level employees from public disclosure by utilizing a process of written evaluations that are not made available to the public." In this sense, the case seems to parallel those involving "serial e-mails" or "serial meetings," where no single deliberative meeting is ever held but a violation is found nonetheless.

Springfield Acts to Open Police Board

I posted here last week about a ruling from the Hampden County district attorney that a Springfield board created by the mayor to review citizen complaints against police is not covered by the open meeting law. Now, The Republican reports that the City Council is considering re-establishing the board through a municipal ordinance, which would have the effect of bringing the board under the open meeting law. For now, the council sent the proposal to a committee for study. It will take it up again when the committee reports back.

Judge Grants Press Access to Poutre Testimony

A judge in Springfield ruled this morning that the news media will be allowed to cover the testimony of 14-year-old Haleigh Poutre if she appears in court to testify in the child abuse case against her stepfather, Jason D. Strickland.

According to a report published today by The Republican, Hampden Superior Court Judge Judd J. Carhart denied the request of the state Department of Children and Families to exclude media coverage if Poutre testifies. He said he would make sure that the press makes accommodations that will be sensitive to the girl, who now lives in a Boston rehabilitation hospital because of brain injury.

Lawyers for both The Republican and The Boston Globe argued for access. On Sunday, The Republican's publisher, Larry McDermott, published a column about his newspaper's request for access, Case Is About Accountability, Not 'Glory'.

Mass. Libel Case Survives Appeal

A libel case brought by a former Abington town official against the Brockton Enterprise will be allowed to proceed to trial, based on a ruling issued today by the Massachusetts Appeals Court. In Howell v. The Enterprise Publishing Company, the court refused to dismiss claims against the newspaper, despite the newspaper's arguments that its stories were protected by the "fair report" privilege.

The case involves a 2005 series of stories by reporters Elaine Allegrini and Allan Stein covering James F. Howell's termination from his position as superintendent of Abington's sewer department. His termination came after the town sewer commission determined that he had used town computers for personal business and for storing inappropriate images. Howell's libel suit alleged that the Enterprise defamed him by accusing him of storing pornography on town computers and by making other allegations that he says are false.

The Enterprise sought to have the case dismissed through summary judgment, which requires a finding that there are "no issues of material fact" that need to be decided through a trial. As to each of Howell's allegations, the court found that there were disputed issues of fact, making summary judgment inappropriate. Among the key contentions addressed by the court's decision:

• The Enterprise described images on Howell's computer as pornographic, relying in part on the sewer commission's characterization of them as such. Howell contends that the images were comical, e-mailed to him by friends, and not pornographic. The court ruled that a jury should decide whether they were pornographic.
• Some Enterprise reports about Howell alluded to the unrelated case of an East Bridgewater official who was found to have child pornography on his computer. These allusions, Howell argues, raised the insinuation that he had child pornography. The court agreed, finding that a "reader reasonably could conclude" there was an association.
• One article inaccurately reported that a conflict-of-interest charge against Howell had been sustained. The Enterprise argued that the "gist" of its article was correct. But the court found that the "inaccuracy was not merely a question of degree."
  

A significant aspect of this opinion is the court's discussion of the fair report privilege -- the idea that a newspaper has a right to rely on and report what is contained in official government reports. As noted above, the Enterprise based its reporting in part on findings by the town sewer commission that characterized the images as pornographic. To that, the appeals court said:

"Even assuming, but not deciding, that the fair report privilege is otherwise applicable to the matters reported on in the articles about Howell, its protection extends only to reports that are both fair and accurate. ... In determining whether a report is fair and accurate, the test is whether a reporter's 'rough-and-ready summary' of the matter reported on is 'substantially correct.' ... Where there is a basis for divergent views, the question whether a report is fair and accurate is for the jury. ... As discussed, supra, here there are material factual issues in dispute regarding whether the articles are fair and accurate. Thus, the judge correctly concluded that summary judgment is not appropriate as to Howell's defamation claims."

Howell had also sued the Enterprise for invasion of privacy. The Appeals Court agreed with the Enterprise that the privacy claim should be dismissed, concluding that Howell's termination was a matter of legitimate public interest.

Police Board Not Bound by Meeting Law

The Massachusetts open meeting law does not apply to a board created to review citizen complaints against police, the Hampden County district attorney's office has decided, according to a report yesterday in The Republican newspaper. The opinion issued by Assistant District Attorney Katherine E. McMahon concludes that the Community Complaint Review Board is not a governmental body covered by the law and therefore does not have to post notices of its meetings.

Springfield's mayor created the nine-member board last year to review resident complaints against the police department. The executive order creating the board expressly stated that it "shall not be a board of the city, but a board of mayor." Given this, the DA's office concluded the board serves only as an adviser to the mayor.

I have not seen the DA's opinion letter. If this board is purely advisory, the ruling is probably correct -- even if unfortunate. The open meeting law does not apply to an individual government official such as a mayor, only to committees and boards. If official who is exempt from the law appoints an informal committee to provide advice on a matter within the authority of that official, that committee is also exempt from the law.

This interpretation is based on a 1991 Supreme Judicial Court decision, Connelly v. School Committee of Hanover, that held that a committee appointed by a school superintendent to assist him in hiring a school principal was not covered by the law.

"Of special significance is the fact that the superintendent, because he is clearly not a 'governmental body,' could, by himself, have accomplished the task of screening and interviewing candidates in a closed session, entirely free from the requirements of the open meeting law. This was his independent and exclusive statutory responsibility, ... and the selection committee was assembled merely to assist him in carrying out his responsibility. We see no persuasive reason to hold that an interviewing and screening process, which is exempt from the open meeting law when carried out by the superintendent, should be subject to the law when carried out by individuals informally appointed by the superintendent to assist him. The selection committee does not fall under the statute because it is not a committee of the town of Hanover but a committee of the superintendent."

This outcome nevertheless begs the question: Why not comply with the open meeting law? In other words, even though a committee is not required to follow the law, it is clearly permitted to do so. If the function of this board is to build citizen confidence in the Springfield police department, then shouldn't the board conduct its business in public view? The answer seems easy to me.

Mass. Court Says News Carrier is Employee

In a case involving the Worcester Telegram and Gazette, the state Appeals Court ruled yesterday that independent news carriers are to be considered employees under the state's unemployment compensation law. The ruling hinged on the "degree of control" exercised by the newspaper over the carrier, with the court finding that the T&G exercised greater control than did the Athol Daily News in a 2003 case in which the Supreme Judicial Court reached the opposite conclusion.

• The court's opinion: Driscoll v. Worcester Telegram & Gazette.
• The T&G news report: State Appeals Court rules T&G carrier as employee.
  

Key excerpts on the control issue:

"WT&G retained control over its carriers' routes by requiring that each carrier provide a list of the delivery order, and continue to deliver the newspapers in that order. WT&G's control of the routes included the right to require carriers to deliver to some customers before others, and to change the routes or papers to be delivered.

"Furthermore, the district manager directly supervised the new carriers, and retained the authority to go on the route to determine if the carrier was performing his job to WT&G's and the customers' satisfaction. WT&G required its carriers to modify their performance to satisfy a customer, and could discharge a carrier because of customer complaints. ... Other undisputed facts support the conclusion that Driscoll was an employee and further distinguish the circumstances in this case from those in Athol Daily News. WT&G reserved the right to demand additional services from its carriers, such as delivering product samples or installing delivery tubes. The publisher in Athol Daily News had no such right. ... WT&G carriers did not own the newspapers, which remained the property of WT&G, nor could they sell the papers at a price higher than that established by WT&G. WT&G's customers paid WT&G directly and WT&G paid the carrier, after deducting all fees and redress charges, for all customers on the route, regardless of whether a particular customer had paid WT&G. The News carriers, on the other hand, purchased the papers from the publisher, had the right to set their own price per newspaper and, if the customer paid the publisher directly, the News refunded the carriers once the customer had paid the publisher.(11) Id. at 173. While the carriers in Athol Daily News could deliver the papers 'on foot, by bicycle, automobile, motorcycle, or otherwise,' id. at 178, WT&G required its carriers 'to have a reliable motor vehicle.'

"Additionally, WT&G required that it be notified in writing, in advance, of any delegated substitute carrier and the period of delegation, and prohibited the use of substitute carriers with delivery histories that it did not deem acceptable. WT&G also required its carriers to obtain approval before giving customers notices concerning future deliveries of its papers. No such restrictions on substitutes were imposed on the carriers in Athol Daily News. Rather, '[w]ithout approval from the News," the News carriers could "be assisted by anyone in the delivery of the newspapers.'"

Podcast: Ike's Impact on Texas Lawyers

When Hurricane Ike hit the Texas coast, lawyers were not spared. Many lawyers were hard hit in both their profesisonal and personal lives. On this week's episode of the legal-affairs podcast Lawyer2Lawyer, my cohost J. Craig Williams and I interview Bill Livesay, executive director of Andrews Kurth LLP in Houston, and Miriam Rozen, staff reporter for Texas Lawyer newspaper. They share their accounts of Hurricane Ike and discuss its impact on the broader legal community.

Listen to or download this week's program from this page.

Nantucket Ordered to Release Records

Acting on an appeal by the Inquirer and Mirror newspaper, the Massachusetts Division of Public Records has ordered Nantucket officials to release a confidential settlement agreement entered into with a former town employee, the Inquirer and Mirror reports today. The town had denied the newspaper's public records request, citing privacy concerns.

New Complaint Filed on Open Meeting Law

From today's Worcester Telegram & Gazette: "The Telegram & Gazette yesterday filed a violation of the Open Meeting Law complaint with Worcester District Attorney Joseph D. Early Jr.’s office regarding a Sept. 8 Water-Sewer Commission meeting that was not posted."

Northeastern Launches First Amendment Center

Northeastern University and the New England First Amendment Coalition have teamed up to launch the New England First Amendment Center, a project designed to focus public attention on access to public records and meetings. From Friday's announcement:

The First Amendment Center will continuously update its website with news about public access and First Amendment issues from across New England and around the nation. It will offer a wealth of information for citizens, journalists and public policy organizations that depend on open access to government. The Center will maintain a Hotline to advise citizens who are seeking public documents, and will conduct original research into issues of government transparency. The Center plans to host seminars on public records statutes and open meeting laws for journalists, municipal officials and lawmakers.

Coordinating the work of the center will be Walter V. Robinson, the former editor of the Boston Globe's Pulitzer Prize winning Spotlight investigative team. The center will also maintain a blog with contributions from Robinson; Dan Kennedy, assistant professor of journalism at Northeastern and author of the blog Media Nation; Doug Clifton, director of the New England First Amendment Coalition; and Tom Heslin, president of the coalition and interim executive editor at The Providence Journal.

Bloggers Offered Insurance, Legal Training

The Media Bloggers Association is spearheading a project to provide bloggers with first-of-its-kind liability insurance as well as free online training in media law. I have full details in a post today at Law.com's Legal Blog Watch.

Judges/Journalists Workshop Tomorrow

I will be speaking tomorrow at the New England regional Judges/Journalists Workshop in Portsmouth, N.H., sponsored by the National Center for Courts and Media.

Boston Flips Open Government on it Face

How does that saying go about the devil reading the Bible to his own ends? That was all I could think of as I read a report arguing that the First Amendment gives Boston city councilors the right to conduct the people's business behind closed doors. I first heard about it through a story in the Boston Herald (Secret society: City Council mulls end to open meetings) and then obtained a copy through a post to a listserv. Part of a longer report, the discussion about the open meeting law is titled Remedial response to adverse judicial decisions interpreting the state's Open Meeting Law (PDF). The most recent of those "adverse decisions" was McCrea v. Flaherty, in which the state Appeals Court ruled that the Boston City Council has repeatedly violated the open meeting law.

Thankfully, the absurdity of the report has already been pointed out by Dan Kennedy, Sam Bayard and the editorial page of the Boston Herald. I say "thankfully" because the report is so patently absurd that I would not know where to start. As someone who has spent much of the last four years working for reform of the Massachusetts open meeting laws, I can say that I agree with one conclusion of the report: the laws need reform. From there, we part company and head off in diametrically different directions.

The report is based on two premises that are not merely weak, but downright wrong. The first is that the open meeting law prohibits public officials from speaking "offline" -- from exchanging "their views, concerns, strategies and/or suggestions in private with one another." It does not. As the commentators cited above all correctly note, it prohibits private meetings only among a quorum of officials. The second premise is that this "prohibition" on private speech between public officials violates their free-speech rights. That is the most extreme contortion of the First Amendment I've ever heard or read.

The report goes on for some 30 pages before ending with three alternative recommendations for addressing this "problem":

• Option 1: Amend the open meeting law to say: "Nothing contained in this Act shall preclude an individual legislator from meeting with colleagues to build support for, gather consensus toward, or solicit cosigner for or against proposed legislation or a committee report, nor shall a gathering of members in private to discuss strategy or ascertain the level of support for an item before or coming before the body constitute a violation of this act. The term quorum shall not apply to such gatherings."

• Option 2: Delete from the law the phrase, "No quorum of a governmental body shall meet in private for the purpose of deciding on or deliberating toward a decision on any matter except as provided by this section," and then add language redefining the word "meeting" so that it would not apply to "deliberative exchanges, verbal or otherwise, between elected officials, singularly or collectively, seeking support for, building consensus toward or devising strategies to support or defeat legislation, or any other matter that may come before the body."

• The final recommendation -- one the report calls "the ideal arrangement" -- would be to amend the open meeting law to exempt from its coverage "local legislative bodies." In other words, just let the city council meet in private as much as it wants.
  

The Boston Herald's editorial is square on point when it refers to this report as arrogant and insulting. A Boston City Council committee was scheduled to discuss it yesterday. I have not heard what came out of that meeting. Let us hope that the councilors sent this report straight to the circular file. Yes, we need reform of the open meeting law in this state. But we need reform that strengthens and protects the public's right to know, not "reform" that protects politicians from public scrutiny.

Read the report and decide for yourself: remedialresponse.pdf.

Podcast: MBTA v. Anderson

It all started when three MIT students put together a presentation for their network security class at MIT about their findings regarding the security vulnerabilities of the Massachusetts Bay Transportation Authority's CharlieCard fare-pass system. Just as the students were about to present their findings at DEFCON, the MBTA went to federal court and won a gag order preventing them from speaking.

The case raises many issues of free speech and computer law. On this week's installment of our legal-affairs podcast Lawyer2Lawyer, we discuss these issues with our guests Tuna Chaterjee, a fellow at the Berkman Center for Internet Law and Society and a staff attorney with the Citizen Media Law Project, and Marc Randazza, First Amendment attorney with the Florida law Weston, Garrou, Walters & Mooney and author of the blog The Legal Satyricon.

Listen to our download the show from this page. As always, you can keep up to date with all Lawyer2Lawyer programs by subscribing via RSS or using iTunes.

Looking for Lawyer2Lawyer Listeners

Are you a listener to our legal-affairs podcast Lawyer2Lawyer? If so, we'd like to have you as a guest on a special program to mark our third anniversary later this month. We know you're out there -- our podcast last month had more than 40,000 downloads. For our anniversary show, we'd like to learn more about the people who listen, whatever their backgrounds and wherever in the world they reside. If you're interested, drop us a note at lawyer2lawyer-AT-legaltalknetwork.com. (Feel free to copy me at ambrogi-AT-gmail.com.)

Podcast: Legendary Lawyer Gerry Spence

Legendary trial lawyer Gerry Spence is our special guest this week on the legal-affairs podcast Lawyer2Lawyer. Spence came to national prominence for handling the Karen Silkwood case and was most recently in the news for winning an acquittal for Michigan lawyer Geoffrey Fieger. He has never lost a criminal case and has not lost a civil case since 1969. Recently, Spence launched his own blog. Join my cohost J. Craig Williams and me as we speak with Spence about his career, his cases and his blogging.

Listen to our download the show from this page. As always, you can keep up to date with all Lawyer2Lawyer programs by subscribing via RSS or using iTunes.

Mass. Shield Bill Fizzles in Legislature

Yesterday, The Patriot Ledger carried a story on the apparent death of a reporters' shield bill in Massachusetts.

"The effort to pass a shield law in Massachusetts offering protections to journalists and their anonymous sources was declared dead by its supporters on Monday.

"The bill would have put Massachusetts among 34 other states and the District of Columbia that have shield laws. Three days remain before the Legislature adjourns from formal session on Thursday night, and the bill has not emerged from the judiciary committee."

I was part of the ad hoc group advocating for this bill, which was spearheaded by Charles Kravetz, president of New England Cable News, and joined by a cross-section of print and broadcast media representatives. It seemed for a time that the bill had a good chance of at least making it out of committee and to the floor for a vote, but with the formal session ending tomorrow, that no longer seems likely. The legislature remains in informal session through the end of December, so it is possible something could still happen, just not, it now appears, likely.

Boston Approves New Newsrack Ordinance

The Boston City Council today voted to approve a significant overhaul of the city's ordinance governing the placement of newsracks. The most significant change is in the fees newspapers must pay. Under the prior ordinance, newspapers paid a one-time registration fee of $150. Now, they will be required to pay an annual registration fee of $300 plus annual fees of $25 per box. The new ordinance must be signed by the mayor before becoming law and then will take effect after 150 days.

The ordinance consolidates newsrack oversight and enforcement within the city's public works department and creates a system for electronically tagging and monitoring newsracks. It allows the commissioner of public works to designate locations as high-traffic areas and limit the number of newsracks in such areas. In areas where the numbers of newsracks are limited, eligibility to place boxes will go to newspapers on a first-come, first-served basis.

Here is a copy of the ordinance approved today (PDF): Boston Newsracks Ordinance 07 30 2008.

My Column Wins National Press Award

Indulge me as I blow my own horn. The American Society of Business Publication Editors this week awarded me its national silver award for best contributed column in a publication with a circulation under 80,000. I received the award for the "Web Watch" column I write for the magazine Law Technology News, an ALM publication.

ASBPE announced its national award winners July 24 as part of its national editorial conference in Kansas City, Mo. My award is listed on the page of editorial award winners. This is the second award for my Web Watch column, which in 2006 won a Silver Tabbie Award for best regular column from Trade Association Business Publications International.

Podcast: Viacom v. YouTube v. Privacy

A $1 billion lawsuit by Viacom accuses Google's video-sharing Web site, YouTube, of violating its copyrights. Last week, Google and Viacom reached an agreement to allow Google to mask user information from records before handing them over to Viacom. On this week's legal-affairs podcast Lawyer2Lawyer, my co-host J. Craig Williams and I discuss the case with guests Kevin A. Thompson, an attorney with the Chicago firm Davis McGrath LLC, and Lauren Gelman, executive director of Stanford Law School's Center for Internet and Society. We discuss questions of privacy and piracy raised by the case and look at the lawsuit's broader implications.

You can listen to or download the show from this page. As always, you can keep up to date with all Lawyer2Lawyer programs by subscribing via RSS or using iTunes.

Judge Backs Schools in Open Meeting Case

The MetroWest Daily News reports that a Massachusetts Superior Court judge has ruled for the Wayland School Committee in an open meeting law case challenging the discussion in executive session of the school superintendent:

"A Middlesex Superior Court judge has ruled the Wayland School Committee did not violate the state's Open Meeting Law in 2004 by discussing Superintendent Gary Burton's evaluation in executive session.

"In a decision dated July 2, Judge Leila Kern said committee members were authorized to discuss Burton's evaluation behind closed doors because the discussion was directly tied to the superintendent's contract and salary."

Revised Guide to Mass. Court Records

The District Court Department of the Massachusetts courts has issued a revised version of its Guide to Public Access, Sealing & Expungement of District Court Records. The blog Massachusetts Law Updates says of it:

"This is a publication we have long loved in the law libraries for its clarity in explaining which court records are available to the public and which are not. Unfortunately, it does not explain the process of access, and what information the researcher needs to provide in order to access records. The sections of sealing and expungement are also clearly written, well annotated, and include forms."

Podcast: Zittrain on the Future of the Internet

Unless something is done to change its course, the future of the Internet, as Jonathan Zittrain sees it, is one of far less innovation and far more -- and far more ominous -- control. Zittrain, who just became a tenured professor at Harvard Law School, discusses his book, The Future of the Internet — And How to Stop It, on this week's episode of the legal-affairs podcast Lawyer2Lawyer.

Zittrain discusses his book, the field of Cyberlaw and his post at Harvard. You can listen to or download the show from this page. As always, you can keep up to date with all Lawyer2Lawyer programs by subscribing via RSS or using iTunes.

Boston Proposes Hike in Newsrack Fees

I testified Monday at a Boston City Council hearing on an proposed overhaul to Boston's newsrack ordinance. Jessica Heslam at the Boston Herald covered the hearing and has this report: Menino pushes plan to hike fees for city’s news boxes. It was also picked up by Editor & Publisher.

Podcast: Judge Gertner on Blogging, Speech

U.S. District Judge Nancy Gertner, who attracted the attention of bloggers and the news media earlier this year when she joined the roster of contributors to the new Slate legal blog, Convictions, shares her thoughts on judicial blogging and judicial speech in this week's episode of our legal-affairs podcast Lawyer2Lawyer.

Judge Gertner is the first Massachusetts judge -- federal or state -- to blog and one of only a handful of judges nationwide who blog. She believes strongly that judges should have more leeway to discuss their work, through blogs and other media. "The more we talk about what we do, the more we expose the shibboleths and the more maybe we can get back to respecting the institution," she tells us in this interview.

You can listen to or download the entire interview from this page. As always, you can keep up to date with all Lawyer2Lawyer programs by subscribing via RSS or using iTunes.

Reporters Won’t be Called in Boston Case

The judge presiding over a Massachusetts murder trial ruled yesterday that that two reporters will not be forced to testify about how they obtained a suicide note written by the defendant in jail while awaiting trial. David E. Frank has the news at the Massachusetts Lawyers Weekly blog The Docket.

Op-ed on open meetings bill

The Boston Globe today published an op-ed I wrote on current efforts to reform the Massachusetts open meeting law: Open the doors to public meetings.

Podcast: Polygamy and the Law

The raid of a polygamist compound in West Texas has raised difficult and troubling issues concerning the interplay between the state, religion and the rights of children, women and families. This week on the legal-affairs podcast Lawyer2Lawyer, I discuss the events in Texas with two guests: Betsy Branch, a family-law attorney with the Dallas firm of McCurley, Orsinger, McCurley, Nelson & Downing, who serves as attorney ad litem for several children in the West Texas case, and lawyer and social critic Wendy Kaminer, who has written about the civil liberties aspects of the case at the blogthefreeforall.net.

• Episode details.
• Download the MP3 file.
  
• Listen in Windows Media.
  

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Podcast: The Case for the Federal Shield Law

John McCain's endorsement this week of a federal shield law for journalists has given renewed momentum to the Free Flow of Information Act pending in Congress (S 2035). At the same time, the U.S. Department of Justice has renewed its offensive against the bill with the launch of a special section of its Web site devoted to its opposition and an op-ed in USA Today by Attorney General Michael B. Mukasey. The debate takes on greater urgency as former USA Today reporter Toni Locy awaits word from a federal appeals court on whether she will be forced to pay contempt fines of $5,000 a day for protecting her sources.

We discuss the journalists' privilege and the need for a federal shield law in this week's episode of the legal-affairs podcast Lawyer2Lawyer. Joining my co-host J. Craig Williams and me as guests on the program are three experts in constitutional and media law:

• Lucy Dalglish, a lawyer and executive director of the Reporters Committee for Freedom of the Press
• Geoffrey R. Stone, the Edward H. Levi Distinguished Service Professor and former dean at the University of Chicago Law School
• Joel Kurtzberg, a partner with the firm Cahill Gordon & Reindel LLP who frequently represents reporters and news organizations

In the program, we discuss the federal bill, high-profile cases involving reporters, states’ efforts to enact their own shield laws, and the rights of journalists and bloggers. The program can be streamed or downloaded from this page.

You can stay up to date with all Lawyer2Lawyer programs by subscribing via RSS or through iTunes.

Text of Open Meeting Bill

The open meeting bill (H 3171) reported yesterday by the Joint Committee on State Administration and Regulatory Oversight would overhaul the law by centralizing oversight and enforcement in the attorney general's office. Since the text of this most recent version does not yet appear on the legislature's Web site, I am posting it here in its entirety. -- RJA

The Commonwealth of Massachusetts

An Act Regulating Open Meetings of State, Local, and Regional Public Bodies

Be it enacted by the Senate and House of Representatives in General Court assembled and by the authority of the same, as follows:

SECTION 1: Sections 11A and 11A-1/2 of chapter 30A are hereby repealed.

SECTION 2: Sections 9F and 9G of chapter 34 are hereby repealed.

SECTION 3: Sections 23A through 23C of chapter 39 are hereby repealed.

SECTION 4: Said chapter 30A is hereby amended by adding the following new sections:-

Section 19: Definitions

For purposes of Sections 19 through 25 of this chapter, the following terms shall have the following meanings:

(a) Executive Session – Any part of a meeting of a public body executive to the public for deliberation of certain matters.

(b) Deliberation – Any communication between a quorum of a public body on any public business within its jurisdiction. Deliberation does not include the mere distribution of a meeting agenda, scheduling information, or distribution of other procedural meeting details, nor does it include the distribution of reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.

(c) Emergency – A sudden, generally unexpected occurrence or set of circumstances demanding immediate action.

(d) Intentional Violation – Any act or omission by a public body, or any member thereof, in knowing violation of the open meeting law.

(e) Meeting – Any corporal convening or electronic convening, which shall include video, web or telephone conferencing or electronic mail, and deliberation by a public body with respect to any matter within the body’s jurisdiction. A meeting shall not include:

(A) An on-site inspection of any project or program, provided that the members do not deliberate.

(B) Attendance by a quorum of a public body at any public or private gathering, such as a conference, training program, media, social or other event, provided that the members do not deliberate.

(C) Attendance by a quorum of a public body at a meeting of another public body that has complied with the notice requirements of the open meeting law, provided that the visiting members do not deliberate, but communicate only by open participation in the meeting on those matters under discussion by the host body.

(D) A meeting of a quasi­-judicial board or commission held for the sole purpose of making a decision required in an adjudicatory proceeding brought before it.

(E) Any session of a Town Meeting convened under section 10 of chapter 39, or attendance by a quorum of a public body at any such session.

(f) Minutes – The written report of a meeting created by a public body as required by subsection (a) of Section 22 and section 5A of chapter 66.

(g) Open Meeting Law – Sections 19 through 25, inclusive, of chapter 30A.

(h) Post Notice – To display conspicuously the written announcement of a meeting in hard copy or electronic format.

(i) Preliminary Screening – The initial stage of screening applicants, which shall not include interviewing candidates, conducted by a committee or subcommittee of a public body solely for the purpose of providing to the public body a list of those applicants qualified for interview and further consideration.

(j) Public Body - Any multiple-member board, commission, committee, or subcommittee within the executive or legislative branch of the commonwealth or within any county, district, city, region or town, however created, elected, appointed, or otherwise constituted, established to serve a public purpose. The governing board of a local housing, redevelopment, or other similar authorities shall be deemed a local public body. The governing board or body of any other authority established by the general court to serve a public purpose in the commonwealth or any part thereof shall be deemed a state public body. The term “public body” shall not include the general court or the committees or recess commissions thereof, bodies of the judicial branch, or bodies appointed by a constitutional officer solely for the purpose of advising one ore more constitutional officers, nor shall it include the board of bank incorporation or the Policyholders Protective Board. A subcommittee shall be deemed to include any multiple-member body created to advise or make recommendations to a public body.

(k) Quorum – A simple majority of the members of the public body, unless otherwise defined by general or special act, executive order, or other authorizing provision.

Section 20: Open Meeting Law Division; Open Meeting Law Advisory Commission; Annual Report, Education and Training

(a) There shall be in the department of the attorney general a division of open meeting law. The attorney general shall designate an assistant attorney general as director of said division. Said director may appoint and remove, subject to the approval of the attorney general, such expert, clerical or other assistants as the work of the division may require. The division shall perform the duties imposed upon the attorney general by the open meeting law, which may include participating, appearing and intervening in any administrative or judicial proceedings pertaining to the enforcement of the open meeting law.

(b) The attorney general shall create and distribute educational materials, and provide training to public bodies in order to foster awareness and compliance with the open meeting law. Open meeting law training may include, but not be limited to, instruction in:

(1) the general background of the legal requirements for the open meeting law;

(2) applicability of this chapter to governmental bodies;

(3) the role of the attorney general in enforcing the open meeting law; and

(4) penalties and other consequences for failure to comply with this chapter.

(b) There shall be an open meeting law advisory commission. The commission shall consist of five members, four of whom shall be appointed by the attorney general, including a nominee of the Massachusetts Municipal Association and a nominee of the Massachusetts Newspaper Publishers Association; and one of whom shall be appointed by the secretary of the commonwealth. The commission shall review issues relative to the open meeting law and shall submit to the attorney general and to the House and Senate chairs of the joint committee on state administration and regulatory oversight recommendations for changes to the regulations, trainings, and educational initiatives relative to the open meeting law as it deems necessary and appropriate.

(b) The attorney general shall, no later than January 31^st of each calendar year, file with the commission and to the House and Senate chairs of the joint committee on state administration and regulatory oversight a report providing information on the enforcement of the open meeting law during the preceding calendar year. The report shall include, but not be limited to:

(1) the number of open meeting law complaints received by the attorney general;

(2) the number of hearings convened as the result of open meeting law complaints by the attorney general;

(3) a summary of the determinations of violations made by the attorney general;

(4) a summary of the orders issued as the result of the determination of an open meeting law violation by the attorney general;

(5) an accounting of the fines obtained by the attorney general as the result of open meeting law enforcement actions;

(6) the number of actions filed in Superior Court seeking relief from an order of the attorney general; and

(7) any additional information relevant to the administration and enforcement of the open meeting law that the attorney general deems appropriate.

(c) The attorney general shall create and distribute educational materials, and provide training to public bodies in order to foster awareness and compliance with the open meeting law. Open meeting law training may include, but not be limited to, instruction in:

(1) the general background of the legal requirements for the open meeting law;

(2) applicability of this chapter to governmental bodies;

(3) the role of the attorney general in enforcing chapter 30A of the general laws; and

(4) penalties and other consequences for failure to comply with this chapter.

Section 21: Open Meetings; Notice Required; Participation by Absent Members; Conduct; Certification; Open Sessions

(a) Except as provided in section 22 of this chapter, all meetings of a public body shall be open to the public.

(b) Except in an emergency, in addition to any notice otherwise required by law, a public body shall post notice of every meeting at least 48 hours prior to such meeting, excluding Saturdays, Sundays, and legal holidays. In an emergency, a public body shall post notice as soon as reasonably possible prior to such meeting. Notice shall be printed in a legible, easily understandable format and shall contain the date, time and place of such meeting and a listing of topics that the chair reasonably anticipates will be discussed at the meeting.

(c) For meetings of a local public body, notice shall be filed with the municipal clerk and posted in a manner conspicuously visible to the public at all hours in or on the municipal building in which the clerk’s office is located.

For meetings of a regional or district public body, notice shall be filed and posted in each city or town within the region or district in the manner prescribed in this section for local public bodies. For meetings of a regional school district, the secretary of the regional school district committee shall be considered to be its clerk and shall file notice with the clerk of each city or town within such district and shall post the notice in the manner prescribed in this section for local public bodies. For meetings of a county public body, notice shall be filed in the office of the county commissioners and a copy thereof shall be publicly posted in a manner conspicuously visible to the public at all hours in such place or places as the county commissioners shall designate for the purpose.

For meetings of a state public body, notice shall be filed with the attorney general, the secretary of state and the information technology division, which shall post such notice on the mass.gov web site.

(d) Members of a public body not present at the meeting location may participate in said meeting through electronic means, whether through audio or video technology or both, provided the absent members and all persons present at the meeting location are clearly audible to each other and to the public attending the meeting, and provided a quorum of the body, including the chair, are present at the meeting location. Such authorized members may vote, and shall not be deemed absent for the purposes of section 23(D) of chapter 39.

(e) After notifying the chair of the public body, any person may make a video or audio recording of an open session of a meeting of a public body, or may transmit the meeting through any medium, subject to reasonable requirements of the chair as to the number, placement, and operation of equipment used so as not to interfere with the conduct of the meeting. At the beginning of the meeting the chair shall inform other attendees of any such recordings.

(f) No person shall address a meeting of a public body without permission of the chair, and all persons shall, at the request of the chair, be silent. No person shall disrupt the proceedings of a meeting of a public body. If, after clear warning from the chair, a person continues to disrupt the proceedings, the chair may order the person to withdraw from the meeting, and if the person does not withdraw, the chair may authorize a constable or other officer to remove the person from the meeting.

(g) The office of open government shall create educational materials to be made available to local officials in order to foster awareness and compliance with the open meeting law. Within two weeks of qualification for office, all persons serving on a public body shall certify, on a form prescribed by the office, the receipt of a copy of the open meeting law and a copy of the guidelines prepared by the attorney general explaining the open meeting law and its application. Unless otherwise directed or approved by the office, the appointing authority, city or town clerk, or the executive director or other appropriate administrator of a state or regional body, or their designees, shall obtain such certification from each person upon entering service and shall retain it subject to the applicable records retention schedule where the body maintains its official records. The certification shall be evidence that the member of a public body has read and understands the requirements of the open meeting law and the consequences of violating it.

Section 22: Executive Sessions

(a) A public body may meet in executive session for one or more of the purposes enumerated in this section provided that:

(1) the body has first convened in open session pursuant to section 21;

(2) a majority of members of the body have voted to go into executive session and the vote of each member is recorded by roll call and entered into the minutes;

(3) before the executive session, the chair shall state the purpose for the executive session, stating all subjects that may be revealed without compromising the purpose for which the executive session was called;

(4) the chair shall publicly announce whether the open session will reconvene at the conclusion of the executive session; and

(5) accurate records of the executive session shall be maintained pursuant to section 23.

(b) A public body may meet in executive session only for the following purposes:

(1) To discuss the reputation, character, physical condition, or mental health, rather than professional competence, of an individual, or to discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member, or individual. The individual to be discussed in such executive session shall be notified in writing by the public body at least 48 hours prior to the proposed executive session; provided, however, that notification may be waived upon written agreement of the parties. A public body shall hold an open session if the individual involved requests that the session be open. If a executive session is held, such individual shall have the following rights:

(A) to be present at such executive session during deliberations which involve that individual;

(B) to have counsel or a representative of his own choosing present and attending for the purpose of advising the individual and not for the purpose of active participation in said executive session;

(C) to speak on his own behalf; and

(D) to cause an independent record to be created of said executive session by audio-recording or transcription, at the individual’s expense.

The rights of an individual set forth in this paragraph are in addition to the rights that he may have from any other source, including, but not limited to, rights under any laws or collective bargaining agreements, and the exercise or non-exercise of the individual rights under this section shall not be construed as a waiver of any rights of the individual.

(2) To conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct collective bargaining sessions or contract negotiations with nonunion personnel.

(3) To discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the public body and the chair so declares.

(4) To discuss the deployment of security personnel or devices, or strategies with respect thereto.

(5) To investigate charges of criminal misconduct or to consider the filing of criminal complaints.

(6) To consider the purchase, exchange, lease or value of real property if the chair declares that an open meeting may have a detrimental effect on the negotiating position of the public body.

(7) To comply with, or act under the authority of, any general or special law or federal grant-in-aid requirements.

(8) To consider or interview applicants for employment or appointment by a preliminary screening committee if the chair declares that an open meeting will have a detrimental effect in obtaining qualified applicants; provided, however, that this clause shall not apply to any meeting, including meetings of a preliminary screening committee, to consider and interview applicants who have passed a prior preliminary screening.

(9) To meet or confer with a mediator, as defined in section 23C of chapter 233, with respect to any litigation or decision on any public business within its jurisdiction involving another party, group or entity, provided that:

(A) any decision to participate in mediation shall be made in an open session and the parties, issues involved and purpose of the mediation shall be disclosed; and

(B) no action shall be taken by any public body with respect to those issues which are the subject of the mediation without deliberation and approval for such action at an open session.

Section 23: Minutes; Voting; Documents and Records; Intersection with the Public Records Law

(a) A public body shall create and maintain accurate minutes of all meetings, including executive sessions, setting forth the date, time, and place, the members present or absent, a summary of the discussions on each subject, a list of documents and other exhibits used at the meeting, the decisions made, and the actions taken at each meeting, including the record of all votes.

(b) No vote taken at an open session shall be by secret ballot. Any vote taken at a executive session shall be recorded by roll call and entered into the minutes.

(c) Minutes of all open sessions shall be created and approved in a timely manner. The minutes of an open session, if they exist and whether approved or in draft form, shall be made available upon request by any person within 10 days.

(d) Documents and other exhibits, such as photographs, recordings, or maps, used by the body at an open or executive session shall, along with the minutes, be part of the official record of the session.

(e) The minutes of any open session, the notes, recordings or other materials used in the preparation of such minutes, and all documents and exhibits used at the session, shall be public records in their entirety and not exempt from disclosure pursuant to any of the exemptions under clause 26 of section 7 of chapter 4. Notwithstanding the provisions of this paragraph, the following materials shall be exempt from disclosure to the public as personnel information: (1) materials used in a performance evaluation of an individual bearing on his professional competence, provided they were not created by the members of the body for the purposes of the evaluation, and (2) materials used in deliberations about employment or appointment of individuals, including applications and supporting materials, provided that any resume submitted by an applicant shall not be exempt.

(f) The minutes of any executive session, the notes, recordings, or other materials used in the preparation of such minutes, and all documents and exhibits used at the session, may be withheld from disclosure to the public in their entirety under exemption (a) of clause 26 of section 7 of chapter 4, as long as publication may defeat the lawful purposes of the executive session, but no longer, provided that the executive session was held in compliance with section 22 of this chapter. When the purpose for which a valid executive session was held has been served, the minutes, preparatory materials, and documents and exhibits of the session shall be disclosed unless the attorney-client privilege or one or more of the exemptions under clause 26 of section 7 of chapter 4 apply to withhold these records, or any portion thereof, from disclosure.

For purposes of this subsection, if a executive session is held pursuant to subsections (b)(2) or (b)(3) of section 22, then the minutes, preparatory materials, and documents and exhibits used at the session may be withheld from disclosure to the public in their entirety, unless and until such time as a litigating, negotiating or bargaining position is no longer jeopardized by such disclosure, at which time they shall be disclosed unless the attorney-client privilege or one or more of the exemptions under clause 26 of section 7 of chapter 4 apply to withhold these records, or any portion thereof, from disclosure.

(g)(1) The public body, or its chair or designee, shall, at reasonable intervals, review the minutes of executive sessions to determine if the provisions of this subsection warrant continued non-disclosure. Such determination shall be announced at the body’s next meeting and such announcement shall be included in the minutes of that meeting.

(2) Upon request by any person to inspect or copy the minutes of a executive session or any portion thereof, the body shall respond to said request within 10 days following receipt and shall release any such minutes not covered by an exemption under subsection (f); provided, however, that if the body has not performed a review pursuant to paragraph (1) of this subsection, the public body shall perform the review and release the non-exempt minutes, or any portion thereof, not later than the body’s next meeting or 30 days, whichever first occurs. A public body shall not assess a fee for the time spent in its review.

Section 24: Enforcement

(a) Subject to appropriation, the attorney general shall interpret and enforce the open Meeting Law.

(b) At least 30 days prior to the filing of a complaint with the office of open government, the complainant shall file a written complaint with the public body, setting forth the circumstances which constitute the alleged violation and giving the body an opportunity to remedy the alleged violation; provided, however, that such complaint shall be filed with the public body within 30 days of the date of the alleged violation,. The public body shall, within 14 business days of receipt of a complaint, send a copy of the complaint to the office of open government and notify said office of any remedial action taken. Any remedial action taken by the public body in response to a complaint under this subsection shall not be admissible as evidence against the public body that a violation occurred in any later administrative or judicial proceeding relating to such alleged violation. The attorney general may authorize an extension of time to the public body for the purpose of taking remedial action upon the written request of the public body and a showing of good cause to grant the extension.

(c) Upon the receipt of a complaint by any person, the attorney general shall determine, in a timely manner, whether there has been a violation of the open meeting law. The attorney general may, and before imposing any civil penalty, shall hold a hearing on any such complaint. Following a determination that a violation has occurred, the attorney general shall determine whether the public body, one or more of the members, or both, are responsible, and whether the violation was intentional or unintentional. Upon the finding of a violation, the attorney general may issue an order:

(1) compelling immediate and future compliance with the open meeting law;

(2) compelling attendance at a training session authorized by the attorney general;

(3) nullifying in whole or in part any action taken at the meeting;

(4) imposing a civil penalty upon the public body of not more than one thousand dollars for each intentional violation;

(5) reinstating an employee without loss of compensation, seniority, tenure or other benefits;

(6) compelling that minutes, records or other materials be made public, and/or

(7) prescribing other appropriate action.

(d) A public body or any member of a body aggrieved by any order issued pursuant to this section may, notwithstanding any general or special law to the contrary, obtain judicial review of said order only through an action in superior court seeking relief in the nature of certiorari, provided that notwithstanding section 4 of chapter 249, any such action shall be commenced in the court within 21 days of receipt of the order. Any order issued pursuant to this section shall be stayed pending judicial review; provided, however, that if the order nullifies an action of the public body, the body shall not implement such action pending judicial review.

(e) If any public body or member thereof shall fail to comply with the requirements set forth in any order issued by the attorney general hereunder, or shall fail to pay any civil penalty imposed thereby within 21 days of the date of issuance of such order or within 30 days following the decision of the superior court if judicial review of such order has been timely sought, the attorney general may file an action to compel compliance. Such action shall be filed in Suffolk superior court with respect to state public bodies, and, with respect to all other public bodies, in the superior court in any county in which the public body acts or meets. If such body or member has not timely sought judicial review of the order, such order shall not be open to review in an action to compel compliance.

(f) As an alternative to the procedure set forth in subsection (c) of this section, the attorney general or three or more registered voters may initiate a civil action to enforce the open meeting law.

Any action under this subsection shall be filed in Suffolk superior court with respect to state public bodies, and, with respect to all other public bodies, in the superior court in any county in which the public body acts or meets. In any action filed pursuant to this subsection, in addition to all other remedies available to the superior court, in law or in equity, the court shall have all of the remedies set forth in subsection (c) of this section and may also impose a civil penalty upon the public body of not more than one thousand dollars for each intentional violation.

In any action filed pursuant to this subsection, the order of notice on the complaint shall be returnable no later than 10 days after the filing thereof and the complaint shall be heard and determined on the return day or on such day thereafter as the court shall fix, having regard to the speediest possible determination of the cause consistent with the rights of the parties; provided, however, that orders may be issued at any time on or after the filing of the complaint without notice when such order is necessary to fulfill the purposes of the open meeting law. In the hearing of any action under this subsection, the burden shall be on the respondent to show by a preponderance of the evidence that the action complained of in such complaint was in accordance with and authorized by the provisions of the open meeting law.

(g) It shall be a defense to the imposition of a penalty that the public body or any member thereof, after full disclosure, acted in good faith compliance with the advice of the public body’s legal counsel.

(h) Payment of civil penalties under this section shall be made to the office of open government to be used without further appropriation to provide for open meeting law education and training throughout the commonwealth.

Section 25: Rulemaking Authority

The attorney general shall have the authority to promulgate rules and regulations to carry out the provisions of Section 24(a), (b), (c), (d) and (e).

SECTION 5. Section 5A of chapter 66 is hereby amended by deleting the words “sections eleven A of chapter thirty A, nine F of chapter thirty-four and twenty-three B of chapter thirty-nine” and inserting in their place the following:- section 23 of chapter thirty A.

SECTION 6 Sections 1, 2, 3, 4, 5 and 6 of this act shall take effect on July 1, 2009.