Text of Judge's TRO Order in Occupy Boston Case

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

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

AG OKs Remote Participation in Public Meetings

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

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

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

The regulations set out three requirements for remote participation:

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

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

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

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

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

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

SJC Cases Test Media Access to Courts

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

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

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

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

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

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

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

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

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

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

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

AG Launches Searchable Site for Open Meeting Rulings

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

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

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

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

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

Open Meeting Advisory Commission to Meet Sept. 8

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

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

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

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

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

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

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

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

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

1st Circuit Rules Public Has Right to Videotape Police

In a resounding affirmation of the First Amendment, the 1st U.S. Circuit Court of Appeals has ruled that members of the public have a constitutionally protected right to videotape police carrying out their duties in public. The Aug. 26 ruling in Glik v. Cunniffe is important to professional journalists and citizen journalists alike. It is of particular significance in Massachusetts, where a state anti-wiretapping law has been used to chill the public's right to videotape police and other public officials.

The ruling comes in the case of Simon Glik, a Russian-born, Boston lawyer. In 2007, while walking through Boston Common, Glik saw a teenager being arrested by Boston police. After he took out his cell phone and began recording the arrest, the police arrested him for violating the Massachusetts wiretap law, a broadly written law that makes it a crime to intercept "any wire or oral communication."

After a state court judge dismissed all the charges against him, Glik filed a civil rights lawsuit in federal court against the police officers who arrested him and the City of Boston. The defendants asked the court to dismiss the lawsuit based on their qualified immunity from lawsuits as police officers acting within the scope of their duties. The trial judge refused to dismiss the case and the defendants appealed to the 1st Circuit.

The 1st Circuit's decision reads like a textbook on the First Amendment. Here is one key passage:

The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within [First Amendment] principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting "the free discussion of governmental affairs." Mills v. Alabama, 384 U.S. 214, 218 (1966). Moreover, as the Court has noted "[f]reedom of expression has particular significance with respect to government because '[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.'" First Nat'l Bank, 435 U.S. at 777 n.11 ... This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties. ... Ensuring the public's right to gather information about their officials not only aids in the uncovering of abuses, ... but also may have a salutary effect on the functioning of government more generally.

The court emphasizes the the right to film belongs not just to members of the news media, but to everyone:

It is of no significance that the present case ... involves a private individual, and not a reporter, gathering information about public officials. The First Amendment right to gather news is, as the [Supreme] Court has often noted, not one that inures solely to the benefit of the news media; rather, the public's right of access to information is coextensive with that of the press. ... Indeed, there are several cases involving private individuals among the decisions from other courts recognizing the First Amendment right to film. ... Moreover, changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.

I should note that the Massachusetts Newspaper Publishers Association, for which I serve as executive director, was part of a group of media organizations that sought but were denied permission to file an amicus brief in this case.

For a much more detailed discussion of the ruling, see the post by Jeff Hermes at Citizen Media Law Project.

Judge Unseals Search Warrant Documents in Case against Prominent Developer

Search warrant documents involving rape and drug charges against a prominent Massachusetts developer should not be sealed, Quincy District Court Judge Robert Ziemian ruled yesterday.

The judge ruled that the documents in the case against William O'Connell are public records. The judge rejected arguments by prosecutors and defense attorneys that release of the documents would interfere with O'Connell's right to a fair trial. The judge also disagreed that their release would violate the rights of the victim, noting that any identifying information would be redacted.

Read the full story from the Patriot Ledger: Judge rules O’Connell search warrant should not be sealed.

AG Rules UMass Trustees Committed 'Wide-Ranging and Serious' Violations of Open Meeting Law

In March, I wrote a post here explaining why I believed the UMass Board of Trustees violated the Open Meeting Law when they went into closed sessions to interview the final candidates for the university president. That post was a follow-up to an earlier post in which State House reporter Dan Ring reported in The Republican that Attorney General Martha Coakley was opening an Open Meeting Law investigation into the trustees' actions.

Today, Ring reports that the AG has issued her findings in the investigation -- and they are harsh. In a 17-page letter, Assistant Attorney General Jonathan Sclarsic writes that the trustees violated the law "throughout the presidential search process" and committee violations that "were wide-ranging and serious."

This is an important ruling from the AG. It underscores a number of the law's requirements as they apply both to executive sessions and to the process of screening and hiring candidates for public jobs. I hope every public official in the state reads this opinion carefully.

At the same time, I wish the AG had imposed a penalty that fit the crime. The "harshest" of the various remedies the AG ordered was for the trustees to undergo training in the Open Meeting Law. This is important, but it amounts to a slap on the wrist now that the deed is done.

I would have preferred to see the AG invalidate the appointment and order the trustees to go through the process in compliance with the law. That would have sent a message they would not soon forget.

Still, the opinion is a strong affirmation of the importance of the Open Meeting Law.

For a PDF of the AG's letter, click here. 

The Post in which I Eat Crow

In a post here Friday, Probation Bill Could Shroud Judicial Discipline, I sounded an alarm, writing that a provision within the probation reform bill would have the effect of shrouding judicial discipline in greater secrecy. I was wrong.

As it turns out, the language I referred to is already state law. It is found in M.G.L. Chapter 211B, Section 10(xv).

I may not like the language. But it isn't new.

As Emily Litella would say: Never mind.

Probation Bill Could Shroud Judicial Discipline

[Correction added 8/1/11: I got this wrong. The language is not new but rather is taken from existing law. See my post, The Post in which I Eat Crow.]

The legislature is scheduled to debate today the final version of a bill to overhaul the state's probation system. Several provisions of the bill (House 3644) would provide more transparency in probation hiring. For example, employment recommendations in support of candidates for state jobs would be made public records.

However, one provision of the bill seems that it could have the effect of shrouding judicial discipline in greater secrecy. Under current law (G.L. c. 211C), disciplinary proceedings against state judges are confidential. But the confidentiality ends if the Judicial Conduct Commission finds that there is sufficient cause to file formal disciplinary charges against the judge with the Supreme Judicial Court.

The bill being debated today contains a provision, Section 10 (xvi), that gives the chief justice justice of the Trial Court the power to discipline judges. It's not clear how that disciplinary process would comport with the Judicial Conduct Commission. However, the bill contains the following language:

Consistent with the provisions of chapter 211C, all proceedings, documents, and other matters relating to such discipline shall at all times be confidential and not open to the public unless the justice appealing the disciplinary action agrees that the same shall not be confidential, or unless the supreme judicial court determines that it is in the public interest for any such proceeding, document, or other matter relating to such discipline to be made public.

Although that clause describes itself as "consistent" with 211C, it is anything but. Under 211C, the confidentiality is automatically lifted when disciplinary charges are filed against a judge. Under this language, the confidentiality is never lifted, unless the SJC takes the affirmative step of determining that it should be.

Unless I'm missing something, this appears to be a major step backward for transparency within the judiciary.

AG Releases Figures on First Year of Open Meeting Law

A year ago, the new Massachusetts open meeting law took effect, for the first time vesting full enforcement power in the attorney general, rather than spreading enforcement among local district attorneys as the prior law had done.

Today, Attorney General Martha Coakley issued a report on the first year of the law's enforcement under her office. (As of this writing, the report is not available on the AG's website but I'm told it should be posted within a day or so.) Here are some of the accomplishments she lists in the report:

• Respond to more than 2,000 telephone and email inquiries from members of public bodies, municipal counsel and the public.
• Investigate 116 complaints.
• Resolve 51 cases, including issuing 34 determinations and informally resolving 17 complaints. 
• Conduct or participate in 47 trainings, including seven regional educational forums on the OML.
• Develop a comprehensive OML website.
• Draft proposed regulations authorizing remote participation in public meetings in certain circumstances.

Ironically, the report fails to mention some of her office's other achievements under the new law, such as drafting interim and permanent regulations to implement the new law and drafting an Open Meeting Law Guide.

The tone of the report is rosy, but it has not been all good news for the AG's OML division. For one, in just over a year of operation, the division has seen two directors come and go. The division's first director, Robert Nasdor, left after just four months. His successor, Britte McBride, did a great job of picking up the ball and running with it, but she also recently left for a new post within the AG's office. The current and third director is Amy Nable.

Still, my opinion is that the AG's office deserves credit for starting from zero and building up to operating speed. The new law gave Coakley major new responsibilities but no extra staff and no extra money to carry them out. The law had – and still has – many grey areas that the AG needed to address. The AG did a good job of launching this new division given what she had to work with. And several of the division's rulings so far show that the AG takes the law seriously and means business.

I've heard complaints that some counties were better off when the DA was enforcing the law. I think time will demonstrate that this change in enforcement made sense. Of course, over the long run, that will depend on whether AGs who succeed Coakley continue to take the law seriously and don’t push the OML division into a back closet.

Hypocrisy about Transparency on Beacon Hill

Even with this week's conviction of former Massachusetts House Speaker Salvatore DiMasi on corruption charges, the response of legislative leaders on Beacon Hill appears to be little more than, "Hey, there's nothing more we can do." As an AP report by Steve LeBlanc says today, there have been few calls for more ethics changes on Beacon Hill.

One reason for this is that the legislature passed a sweeping ethics reform bill just two years ago. And as part of that sweeping reform bill, it also passed a sweeping overhaul of the state's Open Meeting Law, an overhaul supposedly designed to beef up transparency.

But a funny thing about that open meeting law: The legislature exempted itself. Although boards and commissions in the executive branch of state government and in local cities and towns are required to conduct most of their business in public, the legislature has been unwilling to subject itself to the same requirement.

As a matter of fact, the legislature has also exempted itself from the public records law.

Together, the open meeting law and the public records law are the two primary laws designed to ensure transparency in government.

And the legislature has exempted itself from both. But then it says there's nothing more it can do to combat corruption. Hypocrisy.

In the last session of the legislature, bills were filed that would have removed the legislature's exemption from the open meeting law. The bills went nowhere.

Now, in the current session, legislators have another chance. Several bills have been filed that would put the legislature under the open meeting law. They are:

• Senate Bill 1625, sponsored by Sen. Bruce Tarr.
• House Bill 848, sponsored by Rep. Thomas M. Stanley.
• House Bill 2594, sponsored by Rep. Marc T. Lombardo.
• House Bill 3037, sponsored by Rep. Steven L. Levy.

If the legislature is truly committed to open and honest government, it should put its money where its mouth is, so to speak. The legislature should subject itself to the same transparency laws it requires other government officials to abide by. 

Vt. Gov. Signs Bill Strengthening Records Law

Associated Press via Newstimes.com: Vermont Governor Signs Bill Strengthening Public Access:

A bill strengthening Vermont's 35-year-old public records statutes was signed into law Wednesday, removing a financial barrier for citizens who want to sue when they've been denied access by awarding them reimbursement of their legal fees if they win their case. 

The measure also mandates the appointment of public records officers in state agencies and establishes a panel to examine more than 200 exemptions to the law.

Kudos to Vermont.

Read more.

Full Text of Ruling in South Hadley Open Meeting Case

As a follow-up to my post earlier today, Judge Calls Open Meeting Violation 'Shameful,' here is the full text of the ruling: Gelinas v. Town of South Hadley.

Judge Calls Open Meeting Violation 'Shameful''

A Massachusetts judge has ruled that the South Hadley School Committee committed a "shameful" violation of the state open meeting law, fining it $5,000 and invalidating its vote to increase the salary of the town's school superintendent.

Full details of the ruling are available in a report from The Republican.

In fact, the judge found that the School Committee unlawfully met in executive session five times, first to discuss extending the contract of the superintendent, Gus A. Sayer, and then to discuss increasing his salary. Although Judge C. Brian McDonald found that both closed sessions violated the law, he concluded that he could remedy only the pay raise violation because the complaint about the earlier violation was not filed within the time required by law.

This ruling is notable for several reasons:

• First, in justifying its closed session, the School Committee cited an OML exception that allows closed meetings to discuss "contract negotiations." This has become one of those "kitchen sink" exceptions that boards regularly cite, even when no actual negotiations are involved. (I noted this recently with regard to the UMass trustees.) Here, the judge gave this argument short shrift: "These broad references to a permissible exception to the open meeting rule not only were not precise, they were deliberately misleading. Indeed, I find that the announcements were the result of willful decisions to provide false purposes so as to mislead the public."
• Second, the penalty underscores a fundamental flaw in the OML. Although the judge imposed a $5,000 fine, guess who pays that? The taxpayers. The board members who violated the law get off scot-free. For years, the Massachusetts Newspaper Publishers Association has been pushing for teeth in the OML -- specifically for the ability for courts to impose fines on individual members of boards and commissions who intentionally violate the law (not those who innocently violate it). The OML is one of the only laws on the books in Massachusetts that someone can violate without fear of any direct consequence. 
• Third, groups that oppose adding penalties to the OML (most notably the Mass. Municipal Association) argue that public officials virtually never violate the law intentionally. When they do violate the law, these groups contend, it is an innocent violation resulting from misunderstanding of the law's complexities. Yet here, again, is another in a long series of cases that demonstrates that many of the most egregious violations of the OML are committed with full understanding of the law. Officials who skirt the law to meet in closed meetings do so precisely because they want to hide something they know will be unpopular. That is what happened here, with the judge noting that the School Committee was already "at the center of a firestorm of adverse publicity" following the suicide of 15-year-old bullying victim Phoebe Prince. 

One other note: According to the story in The Republican, the judge ordered South Hadley to reimburse the plaintiffs in this case for their legal costs. That is significant because, in a 1988 case, the Supreme Judicial Court ruled that a court cannot award legal costs in an OML case. That was decided under the former OML that was replaced by a new law last year. The new law is silent on attorneys' fees. I have not seen the actual ruling in this case, but perhaps the judge has found grounds under the new law to award fees.

The PlayStation Security Breach and the Law

Sony Corporation suffered a huge security breach in its video game online network with names, addresses and credit card numbers of 100 million PlayStation and PC game network users stolen by hackers. This week on the legal-affairs podcast Lawyer2Lawyer, we discuss the legal obligations of companies to protect consumer data and the rights of consumers when that data is compromised. Helping us do that are two guests:

• Justin Brookman, director of the Center for Democracy & Technology’s Project on Consumer Privacy in Washington, D.C.
• John H. Lacey, attorney with the McCormack Firm in Boston and author of Massachusetts Data Privacy Law Blog.

Listen to or download this week's program at the Legal Talk Network.

SJC: Civil Commitment Hearings Open to Public

The public has a presumptive right to attend judicial proceedings in Massachusetts that are held to determine whether someone should be involuntarily committed to a mental health facility, the Supreme Judicial Court has ruled.

"Public access to the commitment proceedings underscores the seriousness of a potential deprivation of liberty and combats tendencies toward informality that may threaten an individual's due process rights," Justice Judith Cowin wrote for the court in the case, Kirk v. Commonwealth, which was decided March 7. (Apologies for my delay in posting about it.)

However, the public's right to attend is not absolute, the SJC said. Civil commitment hearings may be closed to the public if four conditions are met:

1. The party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced.
2. The closure must be no broader than necessary to protect that interest.
3. The trial court must consider reasonable alternatives to closing the proceeding.
4. It must make findings adequate to support the closure.

The case before the SJC involved Helen Kirk, a woman who in 2007 was found not guilty by reason of insanity in the death of her 3-year-old son. At issue in the civil commitment hearing was whether she was now well enough to be released from a state hospital to a residential facility.

Chazy Dowaliby, editor of The Patriot Ledger, has more details about the case at the New England First Amendment Center.

Open Meeting Advisory Commission to Meet

The Open Meeting Law Advisory Commission will meet on Thursday, May 12, 10:30 a.m., at 100 Cambridge St., 2nd Floor, Conference Room D, Boston. The Notice of Meeting lists the topics that are on the agenda.

The meeting is open to the public. (I sit on this committee as the representative of the Massachusetts Newspaper Publishers Association.)

Mug Shots Not Public Records, State Rules

The Massachusetts Secretary of State's Office has done an about face and decided that police mug shots do not have to be provided to the public under the state's public records law. Last year, the office ruled that mug shots are public records in most cases.

The most recent ruling came in an appeal filed by the Daily Hampshire Gazette in Northampton. The newspaper had asked the Northampton Police Department to release the arrest booking photo of W. Michael Ryan, a former Northampton District Court judge who was arrested and then acquitted of charges of assault and battery on a police officer and disorderly conduct.

The Secretary of State's Office ruled that the police department has discretion to withhold the mug shots under the Criminal Offender Records Information Law.

A Busy Week for Meeting Law Violations

A busy week for violations of the Open Meeting Law:

• The MetroWest Daily News: AG says Wayland selectmen violated Open Meeting Law again.
• Melrose Patch: State: Melrose School Committee's Insufficient Agenda Detail Violated Open Meeting Law, Contract Negotations Did Not.
• The Salem News: Hamilton-Wenham School Committee admits to violating Open Meeting Law.
• The MetroWest Daily News: Ashland Committee Discloses Open Meeting Violation.

R.I.P. Alan Cote, Supervisor of Public Records

Alan Cote, the lawyer who ran the public records division within the Massachusetts Secretary of State's Office, has died, according to the State House News Service. It quotes a statement issued this afternoon by Secretary of State William Galvin:

“It is with great regret that I announce the untimely death of First Deputy Secretary of the Commonwealth Alan N. Cote today after a courageous struggle with cancer. As First Deputy for the past six years, Alan played a key role in the management of the Office of Secretary. As Director and Supervisor of Public Records for almost a decade, Alan combined a zealous advocacy for the principle of open government records with a judicious application of the law as demonstrated in his rulings on appeals. He will be sorely missed.”

Galvin had it right when he described Alan as a zealous advocate of open government. He made many courageous rulings in favor of the public. Even so, he was sometimes frustrated by a state law that gave his office virtually no power to enforce those rulings. Even now, bills are pending in the legislature to enhance the authority of the supervisor of records. We can hope these reforms are enacted. Unfortunately, if they are, Alan won't be here to see it.

Governor Ruled Exempt from Public Records Law

Massachusetts governors since Mitt Romney have insisted that they are exempt from the state's public records law. Now, the office that is charged with enforcement of that law, the office of Secretary of State William F. Galvin, has issued a ruling agreeing with them.

Colman Herman has the details in CommonWealth Magazine.

As Herman points out, the law already exempts the legislature and the judicial branch. Add the governor and you get a pretty watered-down version of transparency here in the Bay State.

Judge Alex Kozinski is our Guest on Lawyer2Lawyer

Has technology rendered the First Amendment obsolete? Alex Kozinski, chief judge of the 9th U.S. Circuit Court of Appeals, made that case in a recent speech at Golden Gate University School of Law. This week on the legal-affairs podcast Lawyer2Lawyer, Judge Kozinski joins us to discuss his views on technology, bloggers, the First Amendment, constraints on judicial speech, and a lot more.

Listen to the show or download the MP3 from the Legal Talk Network.

News Groups File SJC Amicus Brief to Unseal Inquest Documents in Amy Bishop Case

A coalition of New England media and advocacy organizations, spearheaded by Harvard Law School's Cyberlaw Clinic and the Citizen Media Law Project, has filed an amicus curiae brief to the Massachusetts Supreme Judicial Court seeking to unseal inquest documents in the Amy Bishop case.

After Bishop allegedly shot and killed three of her faculty colleagues at the University of Alabama in 2010, Massachusetts officials opened an inquest into the fatal shooting of her brother in 1986. After the inquest resulted in the indictment of Bishop for first-degree murder, the Boston Globe sought release of the inquest transcript and report. A Superior Court judge refused to unseal the documents. The case is now pending before the SJC.

I am a signatory to the brief on behalf of the Massachusetts Newspaper Publishers Association. A more detailed description of the case and the legal issues it involves is available from the Citizen Media Law Project. A PDF copy of the brief is available for download.

How the UMass Trustees Violated the Open Meeting Law

In the wake of Springfield Republican State House reporter Dan Ring's story this weekend on possible Open Meeting Law violations by the UMass Board of Trustees, I have received requests to elaborate on my opinion. As Ring reported, Attorney General Martha Coakley is investigating whether the trustees violated the law when they went into closed sessions to interview the final candidates for university president. My opinion, as I expressed in that article, is that the violation is clear. 

The Open Meeting Law is unequivocal in requiring that the final stages of screening and selecting applicants for government jobs must be conducted in public. I say this not as a matter of interpretation, but relying on the express language of the law. 

With regard to “applicants for employment or appointment,” the law expressly states that only meetings of a preliminary screening committee may be closed, and only then when opening them would “have a detrimental effect in obtaining qualified candidates.” The law defines “preliminary screening” as “the initial stage of screening applicants … for the purpose of providing to the public body a list of those applicants qualified for further consideration or interview.”

Once the preliminary screening -- the initial stage -- is done, the law requires that all other meetings “to consider and interview applicants” must be conducted in public. As the Attorney General's Open Meeting Law Guide states in providing guidance on the preliminary-screening exemption, "This purpose does not apply to any stage in the hiring process after the screening committee or subcommittee votes to recommend a candidate or candidates to its parent body." 

The language of the law could not be more clear or unequivocal. In the case of the UMass trustees, the hiring process had passed well beyond anything that could even remotely be considered "preliminary." This was the final meeting to conduct the final set of interview and make a final hiring decision. By going into a closed-door session to conduct these interviews, the trustees indisputably violated the law. 

Exemptions Cited by the Trustees

There is that old proverb, "The devil can quote scripture for his own ends." Even though the OML is abundantly clear with regard to the hiring process, the trustees justified their closed-door meeting by citing other sections of the law that do not apply to hiring. 

First, they cited the exemption that allows an executive session "to discuss the reputation, character, physical condition or mental health, rather than professional competence, of an individual." 

With regard to hiring, the key words of this exemption are "rather than professional competence." That means that professional competence is not a subject that may be discussed in executive session. When a board is discussing the qualifications of an individual to be hired into a job or to be retained in that job, that is an issue of "professional competence." 

This isn't just my opinion. This is the opinion of both the state Supreme Judicial Court and the AG. The SJC, in its decision last year in District Attorney for the Northern District v. School Committee of Wayland, said, "[A] school committee's deliberation of the superintendent's professional competence must take place in an open session." Likewise, the AG's Guide expressly says that the reputation and character exemption does not apply when "considering applicants for a position, or discussing the qualifications of an individual." 

The next exemption cited by the trustees is that which allows boards to meet in executive session "to conduct strategy sessions in preparation for negotiations with nonunion personnel." 

In the Wayland case cited above, the school committee likewise tried to invoke this very exemption to justify its closed-door meeting to conduct a performance evaluation of the superintendent. The school committee's rationale was that the evaluation would provide information that would be factored into the superintendent's eventual contract and so the exemption applied.

The SJC didn't buy that argument. The purpose of the meeting was to discuss the superintendent's evaluation, the court noted, and there was no discussion at the meeting of contract terms or proposals. 

In the UMass case, the argument makes even less sense and is even more clearly a smoke screen. These closed-door sessions were held before they made their final choice of a president. They had no contract to discuss until after they had made a final decision regarding a candidate. Only after they made their final decision was there someone to negotiate with. As the Wayland case made clear, a board cannot invoke the contract negotiation exception merely because a negotiation will be required at some future date.

The final exemption the trustees cite -- let's call it their "kitchen sink exemption" --  is one which allows closed meetings "to comply with, or act under the authority of, any general or special law or federal grant-in-aid requirements." This is a catch-all exemption that means, simply put, that if there is a law out there somewhere on the books that requires the meeting to be private, so be it. 

If there was such a law, no one seems to have mentioned it. Nothing I have read indicates that the trustees identified a specific law that would have required them to meet in private. They did not identify any such law before going into executive session and they have not identified any such law since. 

In the Wayland case, the SJC emphasized that government bodies should not use the OML's exceptions “to circumvent the requirements of the open meeting law.” The overarching presumption of the law is this: "All meetings of a public body shall be open to the public." Exceptions are just that -- exceptions to what should be the prevailing rule of openness. 

As it applies to hiring, the OML is clear and unequivocal in its requirement that the final stages of screening and selecting among applicants for a position are to be conducted in public. The more important the position, the more important it is that the public be kept informed. The exceptions cited by the trustees do not apply to hiring and seem to be offered as a smokescreen to obscure an illegal meeting. 

Sunshine Week Stories from Mass. Newspapers

Today marks the start of Sunshine Week, a national initiative to promote open government. Here are related stories I came across this weekend in Massachusetts newspapers:

• The Republican: Attorney General Martha Coakley Will Review Whether University of Massachusetts Trustees Complied with Open Meeting Law When Selecting New President.
• Worcester Telegram & Gazette: Switch is a Work in Progress; AG Now Handling Open Meeting Law Enforcement.
• AP via Boston.com: Mass. Lawmakers Still Exempt from Open Meeting Law.
• GateHouse News Service: Mass. Journalists, Citizens Face a Hodgepodge of Local Open Records Practices.
• GateHouse News Service: Commentary: It's Time for Massachusetts to Pursue Greater Online Access to Public Information.
• Patriot Ledger: Dozens of Bills Pending to Increase Access to Public Meetings, Documents.
• New England First Amendment Center: Mass. Writer Asks a Question, Gets a Bill.

Let me know of other stories I've missed.

Did UMass Trustees Violate Open Meeting Law?

State House reporter Dan Ring has a story today in The Republican reporting that Attorney General Martha Coakley will open an investigation into whether the trustees of the University of Massachusetts violated the state open meeting law when they met in closed session to interview finalists for the job of university president.

Dan interviewed me for this story and, as he reports, my opinion is that the violation is clear. When a government body is filling a job opening, the law allows closed-door meetings only at the preliminary stages of the process. Once the final pool of candidates is identified, the rest of the process should take place in the open.

That only makes sense. The public has a right to know about the candidates for a public job. That is especially the case for a public job as important as president of the state university.

To me, this story is yet another illustration of why the state's open meeting law needs more teeth and fewer exceptions. Here, the UMass trustees ignored both the letter and the spirit of the law. To justify their closed-door meetings, they relied on two exceptions in the law that clearly did not pertain to this situation.

It remains to be seen what the AG's office will conclude. To me, the violation seems indisputable.

AG Begins Posting Rulings under Open Meeting Law

Ever since Attorney General Martha Coakley's office took over exclusive responsibility for enforcement of the open meeting law last July, a goal of the office has been to begin posting its rulings online. Beginning today, that goal is now a reality.

This afternoon, the AG's Division of Open Government posted all the determination letters it has issued to date under the new law -- 29 in total. These are the letters that the AG issues after investigating a complaint and deciding whether there has been a violation of the open meeting law.

"The determination letters are intended to be a resource and provide helpful guidance on the requirements of the Open Meeting Law," the AG's website says. "We intend to periodically update this section with newly issued determination letters, so please check back frequently."

These determination letters are part of a broader section of the AG's website devoted to the open meeting law. It includes the text of the law and regulations, a guide to the law, and a variety of materials, forms and resources related to the law.

Reporter's Privilege Protects Globe Reporter from Testifying in Street Performer's Lawsuit

A federal judge in Boston today ruled that Boston Globe reporter Donovan Slack will not be forced to give testimony in a civil rights lawsuit filed by a former Faneuil Hall street performer against the city of Boston. U.S. District Judge Beryl A. Howell ruled that a qualified reporters' privilege under the First Amendment protected Slack from being forced to testify.

"Courts have recognized a qualified privilege under the First Amendment for reporters to protect them from compelled disclosure of information, which they have obtained as part of their news gathering role," Judge Howell wrote. "The reporter's privilege stems from recognition of the 'preferred position of the First Amendment' in our society and 'the importance of a vigorous press.'"

Slack wrote a story for the Globe in 2008 about restrictions imposed by the city of Boston on street performers at Faneuil Hall. Bruce Peck sought to compel Slack to testify in his lawsuit claiming that the city's restrictions violated his First Amendment rights of free speech. When Peck subpoenaed Slack, she asked the federal court to quash the subpoena.

While the reporter's privilege is often raised in cases involving confidential information, Judge Howell wrote that it is also recognized in cases -- such as this one -- involving nonconfidential information. "If a reporter's privilege did not apply to nonconfidential information, it would result 'in a wholesale exposure of press files to litigant scrutiny [and] would burden the press with heavy costs of subpoena compliance.'"

The First Circuit (which includes Boston) applies a two-prong balancing test to determine whether the reporter's privilege applies, Judge Howell said. First, the court must evaluate the litigant's need for the information, considering not merely whether the information is relevant, but whether it is important to the litigant's case. Second, the court must consider whether the party seeking the information has exhausted all reasonably available alternative sources.

Peck, the plaintiff in this case, sought Slack's testimony in order to confirm the limited size of the area the city of Boston allowed for street performers. This piece of information was critical to the court's analysis of Peck's First Amendment claims, Judge Howell ruled, and thereby weighed in favor of compelling Slack's testimony.

However, turning to the second prong of the balancing test, Judge Howell concluded that Peck had failed to demonstrate that no alternate sources for the information existed. Peck offered only "general descriptions" of his efforts to obtain the information elsewhere, "and these descriptions are insufficient to sustain his burden of showing that alternative sources are unavailable."

"Without a proper showing that alternative sources do not exist, the Court will not override the reporter’s privilege and force Ms. Slack to testify in connection with the plaintiff’s case," Judge Howell concluded.

Judge Howell's 14-page opinion contains a thoughtful discussion of the reporter's privilege law and is well worth taking the time to read.

[Hat tip to Suits & Sentences for alerting me to the case.]

Appeals Court Dismisses Libel Case Against Herald

The state Appeals Court today issued an opinion dismissing a libel case brought against the Boston Herald and reporter Michele McPhee. The plaintiff, Edmund LaChance Jr., an incarcerated prisoner, alleged he was libeled by three articles McPhee wrote about online “dating” by incarcerated felons.

The defendants conceded that the articles contained three inaccuracies:

1. That LaChance had been convicted of manslaughter. In fact, he was convicted of rape, aggravated rape, armed robbery, kidnapping, indecent assault and battery, and assault by means of a dangerous weapon. 
2. That he claimed in his online ads to be in prison for manslaughter.
3. That he had committed a “brutal sexual attack on an elderly woman.” 

A Superior Court judge had granted summary judgment dismissing the case and, in today’s opinion, the Appeals Court affirmed that dismissal.

The case is notable for three reasons:

• The court held that LaChance was a “public figure” for purposes of libel law because, by placing his ads online and making deceptive assertions in those ads, he had injected himself into a matter of public concern, “specifically the dangers of interacting with violent felons online.”
• Even though the stories contained inaccuracies, they were not “actionably false” within the meaning of libel law because “publication of the plaintiff’s actual criminal record … would have been, at the very least, equally as damaging to the plaintiff’s reputation in the mind of a reader.”
• The court affirms the applicability of the “fair reporting privilege,” a privilege that protects the publication of information taken from judicial, legislative or other official proceedings. The newspaper’s report that LaChance had committed a sexual assault on an elderly woman was based on the incorrect statement in a court docket that he had committed an “assault and battery on an elderly person.” Because the newspaper had no way of knowing the docket was incorrect, its reporting of that information was privileged, the court said. 

If you’d like to read the full opinion, it is here: LaChance v. Boston Herald.

AG to Hold Regional Trainings in Open Meeting Law

The Division of Open Government within the office of Attorney General Martha Coakley has scheduled a series of seven regional training sessions in the state's new open meeting law, which took effect last July. The training sessions are open to any member of the public.

Here is the schedule:

March 2, 2011 - 7PM-9PM
Place: Brookline High School
Address: 115 Greenough Street, Brookline, MA

March 23, 2011 - 6PM-8:30PM
Place: Harmony Hall
Address: 1660 Lakeview Avenue, Dracut, MA

April 6, 2011 - 6PM-8:30PM
Place: Bridgewater-Raynham Regional High School
Address: 415 Center Street, Bridgewater, MA

May 11, 2011 - 6PM-8:30PM
Place: Nessacus Middle School
Address: 35 Fox Road, Dalton, MA

May 18, 2011 - 6PM-8:30PM
Place: Barnstable Town Hall
Address: 367 Main Street, Hyannis, MA

May 25, 2011 - 6PM-8:30PM
Place: Northampton High School
Address: 380 Elm Street, Northampton, MA

June 1, 2011 - 6PM-8PM
Place: Worcester Public Library
Address: 3 Salem Square, Worcester, MA

More information is available on the AG's website.

New England First Amendment Coalition to Honor Anthony Lewis

The New England First Amendment Coalition will present its first lifetime achievement award Feb. 11 to Anthony Lewis, winner of two Pulitzer Prizes and former columnist for the New York Times.

Lewis spent 50 years at the Times, as a reporter and columnist. He received his first Pulitzer in 1955 for reporting on the government's loyalty program and his second in 1963 for coverage of the Supreme Court. He is the author of five books, including, Freedom for the Thought We Hate: A Biography of the First Amendment.

The NEFAC lifetime achievement award recognizes individuals whose career contributions further the understanding of First Amendment rights. The award honors work that represents the highest standards of journalism and demonstrates a commitment to informing and educating the public.

The award will be presented at a luncheon at the Boston Park Plaza in conjunction with the winter convention of the New England Newspaper and Press Association.

Tickets to the luncheon can be purchased through the NEFAC website or through NENPA's website as part of registration for its conference.

AG Says Wayland Board Broke Open Meeting Law

The Massachusetts attorney general's office has ruled that the Wayland Board of Selectmen violated the state open meeting law in July when it voted in executive session to approve a traffic certification, according to a report by The MetroWest Daily News.

The board properly went into executive session to discuss traffic for a town project because it was subject to litigation, the AG said. However, it should have reconvened in open session to approve the traffic certification.