Bills to Strengthen Open Meeting Law Get Mothballed

Bills that would have put sharper teeth in the Massachusetts Open Meeting Law and that would have extended the law to the legislature have been effectively mothballed for this legislative session. The legislature's Joint Committee on State Administration and Regulatory Oversight referred out the bills with a study order, which means nothing else is likely to happen with them during the current legislative session.

One of the bills that the committee referred to study is House Bill 1734, filed by Rep. Antonio F.D. Cabral (D-New Bedford). It would have allowed courts to impose civil penalties on public officials who intentionally violate the OML and would have authorized the Attorney General's Office to impose public reprimands on officials who intentionally violate the law. Under the current law, a public official who violates the law faces no individual consequences of any kind.

Rep. Cabral's bill would also have authorized recovery of attorneys' fees and costs by citizens who bring legal actions to enforce the OML. Currently, Massachusetts is one of fewer than 10 states that do not allow citizens to recover attorneys' fees.

The Joint Committee also mothballed four different bills, all of which would have included the legislature under the OML. Currently, the legislature is exempt from open-meeting requirements. The four bills are House Bill 848, House Bill 2594, House Bill 3037 and Senate Bill 1625.

SJC Issues Key Ruling on Cameras in Courts

The Massachusetts Supreme Judicial Court issued an important ruling this morning on the constitutionality of cameras in the courts. Ruling on two challenges to the OpenCourt pilot project in Quincy District Court, the SJC held in Commonwealth v. Barnes that any order restricting live video streaming from the courtroom is a form of prior restraint and can be upheld only if it is the least restrictive, reasonable measure necessary to protect a compelling government interest. Here is the SJC's precise language:

We conclude that any order restricting OpenCourt's ability to publish -- by "streaming live" over the Internet, publicly archiving on the Web site or otherwise -- existing audio and video recordings of court room proceedings represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution. Such an order may be upheld only if it is the least restrictive, reasonable measure necessary to protect a compelling governmental interest. 

In the two challenges at issue here, the SJC held that neither case satisfied the standard to justify the prior restraint:

In the Barnes case, we vacate the order of the District Court judge requiring the redaction of the name of the minor alleged victim. We expect and anticipate that OpenCourt will continue to adhere to its policy of not publishing the name of the minor, but agree that on the record of this case, the judge's order was unconstitutional because the Commonwealth did not provide an adequate demonstration that this particular minor's privacy or psychological well-being would be harmed by publication of her name, or that a prior restraint was the least restrictive reasonable method to protect those interests. In the Diorio case, we conclude that Diorio has not met the heavy burden of justifying an order of prior restraint with respect to the specific proceedings at issue in his petition for relief. 

Notably, the SJC went on to request that its Judiciary-Media Committee (on which I serve as the representative of the Massachusetts Newspaper Publishers Association) submit for the SJC's approval a set of guidelines for the operation of the OpenCourt pilot project.

AG Posts Series of Open Meeting Law Training Videos

Kudos to Attorney General Martha Coakley's office for creating and posting a series of free training videos in the Massachusetts Open Meeting Law. The videos are available on the AG's website and also on YouTube. They are useful for public officials, members of the press, members of the public and anyone wanting a better understanding of the law.

The series consists of six separate videos. The entire series takes about an hour to watch. The six in the series are:

• Video #1: Introduction and Open Meeting Law Definitions.
• Video #2: Meeting Notices.
• Video #3: Accessibility of Meetings; Remote Participation; and Public Participation in Meetings.
• Video #4: Executive Sessions.
• Video #5: Meeting Minutes and Records.
• Video #6: Public Body Member Certification; Open Meeting Law Complaint Process; Resources and Contact Info. 

Along with the videos, the AG's office has provided the full transcript of the series for download.

Video of Tuesday's Hearing on Shield Bill

As I noted previously, the Massachusetts legislature's Joint Committee on the Judiciary held a hearing this week on a bill to create a journalist shield law in Massachusetts. House Bill 2255, the Free Flow of Information Act, sponsored by Rep. Alice Hanlon Peisch (D-Wellesley), would bar state government from compelling members of the news media to disclose the source of any news or information.

WWLP State House Reporter Christine Lee covered the hearing and filed this report. It includes interviews with media lawyer Jon Albano, Rep. Peisch and me.

Shield law to protect anon sources: wwlp.com

Cameras in Courts Focus of Boston Bar Panel

The U.S. District Court in Massachusetts is among 14 federal courts participating in a pilot project allowing cameras in the courtroom. I am moderating a panel this week that will look at this pilot project, and also contrast it with the experimental OpenCourt digital-access project under way in Quincy District Court. Also on the panel will be former U.S. District Judge Nancy Gertner, now a professor at Harvard Law School, and Joe Spurr, a multimedia journalist and the director of OpenCourt.

The brown-bag program is Tuesday, March 6, 12:30 to 1:30 p.m., at the Boston Bar Association, 16 Beacon St., Boston. More details and registration information are available here.

Legislature Sets March 6 Hearing on Journalist Shield Bill for Mass.

The Joint Committee on the Judiciary will hold a hearing this week on a bill to create a journalist shield law in Massachusetts. House Bill 2255, the Free Flow of Information Act, sponsored by Rep. Alice Hanlon Peisch (D-Wellesley), would bar state government from compelling members of the news media to disclose the source of any news or information.

The hearing is set for Tuesday, March 6, at 1 p.m. in State House Room A-2.

The bill would also bar the compelled disclosure of notes, outtakes, film and other materials collected by a reporter but not used in any news report, unless a court first determines that the information cannot be obtained anywhere else and there is an overriding public interest in the disclosure.

In addition to barring disclosure of sources and notes, the bill would prohibit the state from compelling a reporter to testify except in cases where disclosure of the identity of a source is necessary to prevent imminent acts of terrorism.

Massachusetts is one of only 10 states that does not have a statute that shields journalists from subpoenas. Last April, West Virginia became the 40th state to enact such a law. The District of Columbia also has a shield law.

The Massachusetts Newspaper Publishers Association and the Massachusetts Broadcasters Association will be among those testifying at Tuesday's hearing. Others with an interest in this bill are encouraged to testify or attend and show their support.

New Rule Governs Electronic Access to Mass. Courts

The Massachusetts Supreme Judicial Court today approved a new SJC Rule 1:19 governing Electronic Access to the Courts. It replaces the older rule on cameras in the courts to address changes in technology and journalism. Among other changes, the rule recognizes citizen journalists and entitles them to use cameras and computers to the same extent as other journalists.

I posted more information about the new rule and a full-text PDF at my LawSites blog.