A First Look at AG's Interim Open Meeting Regs

The office of Attorney General Martha Coakley today released an advance copy of emergency regulations it plans to implement tomorrow as it takes over exclusive responsibility for enforcement of the state's open meeting law.

• Emergency Open Meeting Law Regulations.

In an e-mail transmitting the regulations, Coakley said she would seek public comment on the emergency regulations and adopt final regulations no later than Oct. 1, 2010.

"Our office is committed to ensuring that the changes to the OML will provide for greater transparency and clarity -- both of which are hallmarks of good government," Coakley said in the e-mail. "We are focused on providing educational materials, outreach and training sessions to ensure that all stakeholders understand the law and can prevent violations."

The regulations contain provisions that specify:

• The procedures for posting meeting notices under the new law.
• The procedure for filing complaints of OML violations.
• The process by which the AG will investigate and conduct hearings on OML complaints.
• The ways in which the AG will resolve complaints, whether before a hearing or after one.
• A process for the AG to issue advisory opinions on the OML.

One aspect of the new law I've criticized is its change of the penalty provision to require proof that a violation was "intentional." The statute defines an intentional violation as "an act or omission by a public body or a member thereof, in knowing by violating the open meeting law." (I assume "knowing by violating" was supposed to say "knowingly violating.")

The AG's regulations amplify that slightly, to read as follows:

Intentional Violation means an act or omission by a public body, or a member of a public body, that knowingly violates the OML. Repeated conduct in violation of the OML will be considered evidence of an intentional violation where the body or member has previously been authoritatively advised that the conduct violates the OML.

The specification of "repeated conduct" as evidence of intent makes good sense and provides at least some tangible measure to an often difficult-to-prove standard.

The regulations will be codified as 940 CMR 29.00 et seq. 

New Open Meeting Law Takes Effect July 1

Thursday is launch day for the state's new open meeting law. So far, legislative efforts to delay its start have failed, even as local officials continue to grapple with its notice provisions.

Two stories from this week's news describe the 11th-hour scramble among local officials:

• Clerks scramble to meet new rules. 
• Municipalities down to the wire with Open Meeting Law.

I sympathize with the plight of these local officials. But I don't believe the solution is to delay the law's effective date. The new law was enacted a full year ago. Its effective date was put off for a year precisely so that officials would have time to prepare. If a year wasn't enough time, a few extra months won't make much difference either.

One key to smoothing out the wrinkles in the new law is Attorney General Coakley's office. The AG takes over enforcement of the law as of July 1. The office has taken the position that it has no authority to act under the new law until that date. Once Thursday arrives, I suspect we'll see some quick action from the AG to put out interim regulations and offer answers to some of the questions that are vexing local officials.

Media Credential for Bloggers

I am looking for examples of written policies or orders issued by courts pertaining to the issuance of media credentials for bloggers and citizen journalists. Any help or suggestions would be greatly appreciated.

Is Libel Law Dead or Alive?

John Koblin has a fascinating piece in The New York Observer, The End of Libel? He quotes well-known-media-lawyer after well-known-media-lawyer saying that no one is bringing libel lawsuits anymore. The libel lawyer for Time Inc., Robin Bierstedt, says she is retiring because there are "no more lawsuits." George Freeman, VP and assistant GC at the New York Times, says that, for the first time in his 29 years there, there are no active domestic libel suits. The dean of media lawyers, Floyd Abrams, says he knows of no litigators "who are doing a lot in this area."

If I didn't know which side they were on, I would almost suspect a wisp of nostalgia in their comments, as if an abundance of libel lawsuits represented the good old days.

Why the diminishing number of libel cases? The article attributes it to the glut of information made available via the Internet, the ability of those who feel wronged to disseminate their viewpoints, and the willingness of publications to correct their mistakes.

I am not qualified to quibble with the likes of George Freeman and Floyd Abrams about anything having to do with media law. But I wonder whether libel is dead or merely being redirected towards a different type of publisher. Even if it is true that libel actions against newspapers are dropping, there seems to be an increasing trend to threaten libel actions against bloggers and other types of online publishers and commentators. Perhaps the reason many big-name lawyers are not seeing these cases is that these small-time bloggers can't afford to hire them.

And on the subject of the death of libel, I would love to hear what Howard M. Cooper would have to say. Cooper is the lawyer who has made a national name for himself as the go-to advocate in libel matters, particularly when the subject of the alleged libel is a judge. As The Boston Globe recently said, "Get me Howard Cooper" has become the rallying cry for judges from the Virgin Islands to New Hampshire who feel they have been libeled by media outlets.

If libel lawsuits are down for some, libel business is clearly on the upswing up for Cooper, and not just on behalf of judges. Earlier this year, he represented Tom Scholz of the band Boston in a libel matter.

My sense is -- to paraphrase Mark Twain -- that reports of the death of libel are greatly exaggerated.

Worth Reading: The Week in Media Law

If you don't subscribe to The Week in Media Law, you're missing out on one of the best ways to stay on top of developments in media law throughout the United States. Every Friday, this e-newsletter rounds up dozens of links from media blogs and news sources pertaining to key issues in free speech, defamation, FOI, technology, IP, and reporting.

The newsletter comes from the same people who write the Suffolk Media Law blog. All students at Suffolk University Law School in Boston, they started this project in order to enhance their understanding of communications and media law. The five authors who write the blog and produce the newsletter are: Justin Silverman, Kristin Billera, Denise Ouellet, Kristen Sibiga and Morris A. Singer.

City Delays Records Release to Check for 'Enemies'

Here are two key points you should know about the Massachusetts public records law:

1. A city is required to respond to a records request within 10 days.
2. A city may not withhold records based on the reason (or lack of reason) for the request or the identity of the person making the request.

It would seem the city of Lawrence was unaware of either of these points, based on its response to a records request filed by the Boston Herald. As the Herald's Joe Dwinell relates, when the paper asked for the city's payroll, the city delayed its response for two months.

Even better is why the city delayed. According to the city attorney, the city has "a lot of enemies" and he had to check to make sure none of them were behind the request.

This is the first I've heard of an "enemies exemption" under the public records law.

[Hat tip to the blog Open Records.]