Sunday, April 27, 2008
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Friday, April 18, 2008
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.
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SECTION 1: Sections 11A and 11A-1/2 of chapter 30A are hereby repealed.
SECTION 2: Sections 9F and 9G of chapter 34 are hereby repealed.
SECTION 3: Sections 23A through 23C of chapter 39 are hereby repealed.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 31st 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
(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
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
For more on the law, including comments from me, see these reports: