Monday, April 26, 2010

Legal Skirmish over Civil War Psych Records

Reporter Tom Scheffey has an interesting story in the Connecticut Law Tribune about a public-records fight over psychiatric records of Civil War soldiers.

A professor and a graduate student at Central Connecticut State University wanted access to the records in connection with the student's research for his thesis involving post-traumatic stress disorder.

The state fought the request, citing a psychiatrist-patient privilege enacted in Connecticut in 1969. The professor and his student fought back, arguing that the privilege was not intended to be applied retroactively, and won a ruling from the state Freedom of Information Commission ordering release of the records.

Lowell Sun Wins Appeal on Cop’s Records

In a post at the New England First Amendment Center, Tom Zuppa, assistant managing editor at The Sun in Lowell, tells about his paper's fight to get access to records of a police internal-affairs investigation in Tyngsboro, Mass. The kicker is that even though town officials knew the law required them to release the documents, they held onto them because they had agreed with police not to release them unless ordered to do so by the attorney general or secretary of state. "In other words," Zuppa writes, "the town and police made a deal to follow the law only if compelled."

Thursday, April 15, 2010

U.S. Court in Mass. Mulls Easing of Cameras Rule

The U.S. District Court in Massachusetts is proposing a rule change that would allow cameras in federal courtrooms. The proposed rule would expressly authorize judges to permit the transmission of court proceedings by broadcast and via the Internet.

The proposal is a response to the decision of the 1st U.S. Circuit Court of Appeals in In re Sony BMG Music Entertainment, where the appeals court ruled that the District Court's current rule blocked U.S. District Judge Nancy Gertner from allowing a music-download case to be webcast.

The proposed changes to the rule would still prohibit cameras in most instances. It would give judges discretion to permit cameras and to place "such limitations and restrictions" on their use as the judge deems appropriate. The rule would also authorize the judge to place restrictions on the use and additional dissemination of the broadcast.

In any case where cameras are allowed, the rule would prohibit them from showing jurors. The rule would allow witnesses and litigants to opt out of being photographed. Also prohibited would be use of cameras to capture sidebar conferences with the judge or discussions between lawyers and their clients.

The court is accepting public comment on the proposed rule until tomorrow, April 16, after which it will decide whether to adopt it.

Monday, April 12, 2010

AG Seeks Comment on Rule for Posting Open Meeting Notices

The new open meeting law that takes effect in Massachusetts on July 1 requires municipalities to post meeting notices "in a manner conspicuously visible to the public at all hours." Given that public buildings are generally not open "at all hours," some municipalities are concerned about how they will comply.

In an effort to address this issue before the law takes effect, the new Division of Open Government in the Attorney General's office has issued a Notice Posting Proposal suggesting alternative posting methods. It is inviting the public to comment on the proposal, with a requirement that comments be submitted by April 23.

"An outdoor, weather-proof bulletin board would seem the most obvious means" for a municipality to comply with the law, the notice says. But many municipalities are concerned "about their practical ability to post numerous meeting notices outdoors."

The AG is proposing four alternative methods:
  1. Posting notices on the town Web site and posting in or on an alternate town building (e.g., police or fire station) where the notice would be visible at all hours.
  2. Posting notices on cable television and posting in or on an alternate town building (e.g., police or fire station) where the notice would be visible at all hours.
  3. Placing a computer monitor or electronic bulletin board in a door or window of the municipal building in such a manner as to be visible to the public (including the disabled) from outside the building.
  4. Providing an audio recording of meeting notices, available to the public by telephone at all hours.
I would suggest a fifth alternative that is time-tested, available at all hours, and proven to be effective as a means of disseminating public notices: Publication of the notice in the local newspaper.

If you wish to comment on the proposed alternatives, submit them by April 23 to: Robert A. Nasdor, Director, Division of Open Government, Office of Attorney General, One Ashburton Place, 20th Floor, Boston, MA 02108, or by e-mail to:

Thursday, April 01, 2010

Battle Brewing Over Blog Comments

The Boston Globe today has a piece (Town of Southborough considers suing annonymous online commenter) about the unfortunate situation in Southborough, Mass., where the town counsel and selectmen are threatening a lawsuit to uncover the identity of someone who posted comments on Susan Fitzgerald's blog,, under the anonymous name "Marty." The Metrowest Daily News had earlier reported this story on March 19 (Southborough selectmen mull legal action over blog comments).

Kudos to Susan, who says she has no intention to reveal Marty's true identity. To her credit, she invited Town Counsel Aldo Cipriano to contribute a post to her blog telling his side of the story. Cipriano declined.

Let's hope Southborough officials come to realize that criticism comes with the job. A lawsuit would be a waste of taxpayer dollars and would serve no good end. The only basis for such a suit would be libel and nothing about this situation would appear to warrant a libel case. And absent a strong showing of libelous harm, courts are unlikely to force a blog owner to reveal the identity of an anonymous commenter.

Susan summed up the situation well when she wrote that free speech isn't always pretty. "In any community there will be people whose opinions make your blood boil," she said. "It’s true of this town, and it’s true of this blog. But how different it would be if selectmen saw this site as a place to engage with their community instead of making it 'us versus them.'"

Coakley Names Director of Open Government

Attorney General Martha Coakley announced yesterday that she has named lawyer Robert Nasdor to be director of the new Division of Open Government. The new division within the AG's office was created as part of a major overhaul of the state's open meeting law that goes into effect on July 1. Most notably, the new law consolidates open meeting enforcement under the AG, removing district attorneys from the role they had enforcing the law against local government entities.

Nasdor, who started in his new job last week, most recently worked as legal director at the National Center on Homelessness & Poverty in Washington, D.C. From 1997 to 2005, he was executive director of the Legal Assistance Corporation of Central Massachusetts.

Coakley's announcement also says that she will focus on ramping up training and educational resources for public officials who are subject to the open meeting law. She plans to develop a comprehensive Web site devoted to the law and also conduct in-person, regional training sessions.