tag:blogger.com,1999:blog-81399982024-03-13T00:32:30.488-04:00Media LawA blog about freedom of the pressBob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.comBlogger595125tag:blogger.com,1999:blog-8139998.post-59881346858505348622012-08-23T15:34:00.000-04:002012-08-23T15:34:56.588-04:00Search Warrant Affidavit Open to Public, SJC RulesIn a victory for the news media, the Supreme Judicial Court today sided with the Quincy Patriot Ledger and ruled that the affidavit filed by police in support of a search warrant should be open to the public.<br />
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The case involved a State Police investigation into allegations that a prominent Quincy real estate developer, William O’Connell, had engaged in unlawful sexual relations with a minor. Shortly after police executed the warrant, a Quincy District Court judge impounded the affidavit.<br />
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The Patriot Ledger intervened in the criminal case to seek access to the impounded affidavit. Ruling that the document was presumptively public, the District Court judge lifted the impoundment order. Prosecutors and O’Connell both appealed.<br />
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In its decision today, the SJC noted that there is a longstanding presumption in favor of public access to search warrants and supporting materials. While a judge may restrict access for good cause, impoundment should be used only in limited and specific circumstances, the SJC said.<br />
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Here, the SJC rejected O’Connell’s argument that release of the affidavit would prejudice his right to a fair trial. “By engaging in the proper balancing of interests, and utilizing the procedural tools available in criminal proceedings, judges are well equipped to safeguard a defendant's right to a fair trial,” the court said.<br />
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The SJC also ruled for the first time on the applicability of a state law that makes reports to police of rapes or sexual assaults private. General Laws c. 41, § 97D, provides: "All reports of rape and sexual assault or attempts to commit such offenses and all conversations between police officers and victims of said offenses shall not be public reports and shall be maintained by the police departments in a manner which will assure their confidentiality."<br />
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Prosecutors and O’Connell argued that this statute applied not only to police records, but also to court records, including search warrant affidavits. The SJC concluded otherwise, it does not by its terms preclude publication in court of police reports or the content of a victim's conversations with police regarding an alleged rape or sexual assault.<br />
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The case is <em><a href="http://sociallaw.com/slip.htm?cid=21586&sid=120" target="_blank">Commonwealth v. George W. Prescott Publishing Co., LLC</a></em>.<br />
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The <a href="http://masspublishers.org/" target="_blank">Massachusetts Newspaper Publishers Association</a>, for which I serve as executive director, filed an amicus brief in support of the Patriot Ledger, together with the New England Newspaper and Press Association, the Citizen Media Law Project and the New England First Amendment Coalition.
Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com0tag:blogger.com,1999:blog-8139998.post-43899818791563490102012-07-03T16:48:00.000-04:002012-07-03T16:48:06.944-04:00Outrageous Censorship of Blogger in Berkshire CountyA District Court judge in Pittsfield, Mass., that makes a travesty of the First Amendment. Last Thursday, Judge Bethzaida Sanabria-Vega ordered blogger Dan Valenti to remove from his blog <a href="http://planetvalenti.com/" target="_blank">Planet Valenti</a> all references to Meredith Nilan, a Pittsfield-area woman who had faced criminal charges related to a car accident last year that seriously injured a pedestrian out walking his dog. <div>
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The judge's order directed Valenti "to remove any and all information referring to the Plaintiff from any and all websites, blogs, etc." </div>
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Reporter Andrew Amelinckx has the full story in <a href="http://www.berkshireeagle.com/ci_20954613/judge-gives-nilan-harassment-protection-from-valenti-orders" target="_blank">The Berkshire Eagle</a>. Valenti later complied with the order and removed all references to Nilan from his blog, <a href="http://www.berkshireeagle.com/ci_20965831/valenti-pulls-all-nilan-references-from-blog" target="_blank">Amelinckx reports</a>. An <a href="http://www.berkshireeagle.com/editorials/ci_20987212/blogging-and-first-amendment" target="_blank">editorial yesterday</a> in The Berkshire Eagle said this incident "should concern anyone who takes the First Amendment seriously." </div>
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The blog <a href="http://www.popehat.com/2012/06/28/planet-valenti-muzzled-another-restraining-order-against-a-blogger/" target="_blank">Popehat</a> points out another angle of this story. Nilan, the woman who took out the harassment complaint, is the daughter of Clifford J. Nilan, chief probation officer of the Berkshire Superior Court. </div>
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Nilan's affidavit in support of her request for a harassment prevention order alleged that Valenti "began a regular and malicious attack on my reputation, including and not limited to publishing on his website, www.planetvalenti.com, lies and innuendo regarding a traffic accident from December 2011." </div>
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From what I've seen of them, Valenti's posts focused on his belief that the prosecution of the criminal case against Nilan was mishandled and was a "travesty of justice." He lays out his take on the case against Nilan and explains why he believes it was botched. </div>
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This is precisely the kind of writing that the First Amendment protects from censorship and prior restraint. If Nilan believes she has been defamed, then her remedy is to sue Valenti for libel, not to ask a judge to shut him down. </div>
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The judge has scheduled a follow-up hearing for Monday, July 9, when she will decide whether to continue the harassment order in effect. Let's hope cooler heads -- and the First Amendment -- prevail. </div>Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com1tag:blogger.com,1999:blog-8139998.post-25751838671039144322012-03-27T10:07:00.000-04:002012-03-27T10:07:34.143-04:00Bills to Strengthen Open Meeting Law Get MothballedBills 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.<br />
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One of the bills that the committee referred to study is <a href="http://malegislature.gov/Bills/187/House/H01734" target="_blank">House Bill 1734</a>, filed by <a href="http://malegislature.gov/People/Profile/AFC1" target="_blank">Rep. Antonio F.D. Cabral</a> (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.<br />
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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.<br />
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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 <a href="http://malegislature.gov/Bills/187/House/H00848" target="_blank">House Bill 848</a>, <a href="http://malegislature.gov/Bills/187/House/H02594" target="_blank">House Bill 2594</a>, <a href="http://malegislature.gov/Bills/187/House/H03037" target="_blank">House Bill 3037</a> and <a href="http://malegislature.gov/Bills/187/Senate/S01625" target="_blank">Senate Bill 1625</a>.Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com0tag:blogger.com,1999:blog-8139998.post-37164318533866050452012-03-14T11:13:00.000-04:002012-03-14T11:13:59.116-04:00SJC Issues Key Ruling on Cameras in CourtsThe Massachusetts Supreme Judicial Court issued an important ruling this morning on the constitutionality of cameras in the courts. Ruling on two challenges to the <a href="http://opencourt.us/" target="_blank">OpenCourt</a> pilot project in Quincy District Court, the SJC held in <a href="http://sociallaw.com/slip.htm?cid=21231&sid=120" target="_blank"><i>Commonwealth v. Barnes</i></a> 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:<br />
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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. </blockquote>
In the two challenges at issue here, the SJC held that neither case satisfied the standard to justify the prior restraint:<br />
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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. </blockquote>
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.Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com1tag:blogger.com,1999:blog-8139998.post-49185041646936482162012-03-13T20:31:00.001-04:002012-03-13T20:31:40.641-04:00AG Posts Series of Open Meeting Law Training VideosKudos to Attorney General Martha Coakley's office for creating and posting a series of <a href="http://www.mass.gov/ago/government-resources/open-meeting-law/oml-events-hearings-and-trainings/trainings/" target="_blank">free training videos</a> in the Massachusetts Open Meeting Law. The videos are available on the <a href="http://www.mass.gov/ago/government-resources/open-meeting-law/oml-events-hearings-and-trainings/trainings/" target="_blank">AG's website</a> and also on <a href="http://www.youtube.com/user/MassAttorneyGeneral" target="_blank">YouTube</a>. They are useful for public officials, members of the press, members of the public and anyone wanting a better understanding of the law.<br />
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The series consists of six separate videos. The entire series takes about an hour to watch. The six in the series are:<br />
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<ul>
<li>Video #1: Introduction and Open Meeting Law Definitions.</li>
<li>Video #2: Meeting Notices.</li>
<li>Video #3: Accessibility of Meetings; Remote Participation; and Public Participation in Meetings.</li>
<li>Video #4: Executive Sessions.</li>
<li>Video #5: Meeting Minutes and Records.</li>
<li>Video #6: Public Body Member Certification; Open Meeting Law Complaint Process; Resources and Contact Info. </li>
</ul>
Along with the videos, the AG's office has provided the <a href="http://www.mass.gov/ago/government-resources/open-meeting-law/oml-events-hearings-and-trainings/trainings/transcript-of-oml-web-training.pdf">full transcript of the series</a> for download.<br />Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com0tag:blogger.com,1999:blog-8139998.post-54178720085739927762012-03-07T21:53:00.000-05:002012-03-07T21:53:27.741-05:00Video of Tuesday's Hearing on Shield BillAs I <a href="http://medialaw.legaline.com/2012/03/legislature-sets-march-6-hearing-on.html" target="_blank">noted previously</a>, 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. <a href="http://malegislature.gov/Bills/187/House/H02255">House Bill 2255</a>, the <em>Free Flow of Information Act</em>, sponsored by <a href="http://malegislature.gov/People/Profile/AHP1">Rep. Alice Hanlon Peisch</a> (D-Wellesley), would bar state government from compelling members of the news media to disclose the source of any news or information.<br />
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WWLP State House Reporter Christine Lee covered the hearing and filed this report. It includes interviews with media lawyer <a href="http://www.bingham.com/Lawyer.aspx?ID=95" target="_blank">Jon Albano</a>, Rep. Peisch and me.
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<a href="http://www.wwlp.com/dpp/news/politics/state_politics/Shield-law-to-protect-anon-sources">Shield law to protect anon sources: wwlp.com</a></div>Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com0tag:blogger.com,1999:blog-8139998.post-68537073892549719202012-03-04T14:34:00.000-05:002012-03-04T14:34:36.431-05:00Cameras in Courts Focus of Boston Bar Panel<br />
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The U.S. District Court in Massachusetts is among 14 federal courts participating in a <a data-mce-href="http://www.mad.uscourts.gov/general/Cameras.html" href="http://www.mad.uscourts.gov/general/Cameras.html">pilot project</a> 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 <a data-mce-href="http://opencourt.us/" href="http://opencourt.us/">OpenCourt</a> digital-access project under way in Quincy District Court. Also on the panel will be former U.S. District Judge <a data-mce-href="http://www.law.harvard.edu/faculty/directory/index.html?id=953" href="http://www.law.harvard.edu/faculty/directory/index.html?id=953" target="_blank">Nancy Gertner</a>, now a professor at Harvard Law School, and <a data-mce-href="http://opencourt.us/about/staff/" href="http://opencourt.us/about/staff/" target="_blank">Joe Spurr</a>, a multimedia journalist and the director of OpenCourt.</div>
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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 <a data-mce-href="https://www.bostonbar.org/membership/events/event-details?ID=9484" href="https://www.bostonbar.org/membership/events/event-details?ID=9484" target="_blank">are available here</a>.</div>Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com1tag:blogger.com,1999:blog-8139998.post-72389342532755944042012-03-04T11:44:00.000-05:002012-03-04T11:44:32.640-05:00Legislature Sets March 6 Hearing on Journalist Shield Bill for Mass.<br />
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The Joint Committee on the Judiciary will hold a hearing this week on a bill to create a journalist shield law in Massachusetts. <a data-mce-href="http://malegislature.gov/Bills/187/House/H02255" href="http://malegislature.gov/Bills/187/House/H02255">House Bill 2255</a>, the <em>Free Flow of Information Act</em>, sponsored by <a data-mce-href="http://malegislature.gov/People/Profile/AHP1" href="http://malegislature.gov/People/Profile/AHP1">Rep. Alice Hanlon Peisch</a> (D-Wellesley), would bar state government from compelling members of the news media to disclose the source of any news or information.</div>
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The hearing is set for Tuesday, March 6, at 1 p.m. in State House Room A-2.</div>
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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.</div>
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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.</div>
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Massachusetts is one of only 10 states that does not have a statute that shields journalists from subpoenas. Last April, West Virginia <a data-mce-href="http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-law-summer-2011/number-states-shield-law-climbs" href="http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-law-summer-2011/number-states-shield-law-climbs">became the 40th state</a> to enact such a law. The District of Columbia also has a shield law.</div>
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The <a href="http://masspublishers.org/" target="_blank">Massachusetts Newspaper Publishers Association</a> 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.</div>Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com0tag:blogger.com,1999:blog-8139998.post-50784109645843599242012-03-02T17:00:00.000-05:002012-03-02T17:00:33.970-05:00New Rule Governs Electronic Access to Mass. CourtsThe 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.<br />
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I posted more information about the new rule and a full-text PDF <a href="http://www.lawsitesblog.com/2012/03/sjc-issues-new-rule-on-electronic-access-to-courts.html#.T1FCC_GPWf4" target="_blank">at my LawSites blog</a>.Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com0tag:blogger.com,1999:blog-8139998.post-7532807688896381812011-11-17T21:17:00.000-05:002011-11-17T21:21:20.943-05:00Text of Judge's TRO Order in Occupy Boston CaseSuperior Court Judge Frances A. McIntyre issued her order today in <a href="http://www.lawsitesblog.com/wp-content/uploads/2011/11/Occupy-Boston-Ct-Ordr-re-Mtn-for-TRO.pdf">Occupy Boston v. City of Boston</a>, 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.<br />
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Read the full text of today's order: <a href="http://www.lawsitesblog.com/wp-content/uploads/2011/11/Occupy-Boston-Ct-Ordr-re-Mtn-for-TRO.pdf">Occupy Boston v. City of Boston</a>.Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com1tag:blogger.com,1999:blog-8139998.post-56098507213660439532011-11-10T18:11:00.000-05:002011-11-10T18:27:10.204-05:00AG OKs Remote Participation in Public MeetingsMembers 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.<br />
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The regulations, <a href="http://www.mass.gov/ago/government-resources/open-meeting-law/940-cmr-2900.html#Remote">940 CMR 29.10</a>, were announced today and take effect tomorrow, Nov. 11.<br />
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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.<br />
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The regulations set out three requirements for remote participation:<br />
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<li>Members who participate remotely and all persons present at the meeting location must be clearly audible to each other.</li>
<li>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.</li>
<li>Members who participate remotely may vote and are not considered absent.</li>
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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:<br />
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<li>Personal illness.</li>
<li>Personal disability.</li>
<li>Emergency.</li>
<li>Military service.</li>
<li>Geographic distance.</li>
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Once remote participation is approved for a meeting, then the regulations require that the following procedures be followed:<br />
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<li>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.</li>
<li>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.</li>
<li>All votes taken during the meeting must be by roll call.</li>
<li>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).</li>
<li>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.</li>
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Changes to the <a href="http://www.mass.gov/ago/government-resources/open-meeting-law/open-meeting-law-mgl-c-30a-18-25.html">open meeting law</a> 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.Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com0tag:blogger.com,1999:blog-8139998.post-74462431968358344242011-11-07T08:44:00.000-05:002011-11-07T08:45:47.467-05:00SJC Cases Test Media Access to CourtsThe Massachusetts <a href="http://www.mass.gov/courts/sjc/">Supreme Judicial Court</a> is slated to hear arguments this week in a series of cases that test news media access to court proceedings and documents.<br />
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On Tuesday, Nov. 8, at 9 a.m., the SJC will hear two cases, both arising out of the experimental <a href="http://opencourt.us/">OpenCourt</a> 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.<br />
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In one of the two cases, <i><a href="http://ma-appellatecourts.org/display_docket.php?dno=SJC-11052">Charles Diorio v. First Justice of the Quincy Div. of the District Court Department</a></i>, 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, <i><a href="http://ma-appellatecourts.org/display_docket.php?dno=SJC-11035">Commonwealth v. Norman Barnes</a></i>, the district attorney challenges OpenCourt's archiving of an evidentiary hearing in which the identity of a child sexual assault victim was disclosed. <br />
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In both cases, <a href="http://www.wbur.org/">WBUR-FM</a>, 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. </div>
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On Wednesday, Nov. 9, at 9 a.m., the SJC will hear another media-access case, coincidentally also arising out of Quincy District Court, <i><a href="http://ma-appellatecourts.org/display_docket.php?dno=SJC-11062">William O'Connell v. Criminal Clerk of Quincy District Court</a></i>. The issue in this case is whether affidavits and other materials filed in support of a search warrant are public documents. </div>
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The appeal results from a request by <i>The Patriot Ledger</i> 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. </div>
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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. </div>
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All of the arguments at the SJC this week <a href="http://www.suffolk.edu/sjc/">will be webcast</a>. </div>Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com1tag:blogger.com,1999:blog-8139998.post-62934327050207603822011-10-06T08:16:00.000-04:002011-10-06T08:16:46.254-04:00Federal Court in Boston to Announce New Rules on Cameras and Coverage TodayThe chief judge of the <a href="http://www.mad.uscourts.gov/">U.S. District Court for Massachusetts</a>, 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:<br />
<ul><li><b>Cameras in the courtroom.</b> 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 <a href="http://www.uscourts.gov/">www.uscourts.gov</a>.</li>
<li><b>Virtual Press Box.</b> 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.</li>
</ul>Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com0tag:blogger.com,1999:blog-8139998.post-40316998724793580422011-09-28T14:27:00.000-04:002011-09-28T14:27:50.224-04:00AG Launches Searchable Site for Open Meeting RulingsAfter 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, <a href="http://www.mass.gov/ago/openmeetings">www.mass.gov/ago/openmeetings</a>, and later began posting the determinations issued by her office in response to complaints under the law. <br />
<div><br />
</div><div>Now that site has taken a major step forward in usability by adding an <a href="http://www.oml.ago.state.ma.us/Default.aspx?section=0">OML Determination Lookup</a> 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.</div>Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com0tag:blogger.com,1999:blog-8139998.post-83775308471830543842011-09-25T13:57:00.000-04:002011-09-25T13:57:04.513-04:0020 Mass. Newspapers Publish Joint Editorial Calling for Stronger Access LawsToday, 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. <br />
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</div><div>Links to all the editorials are compiled at the <a href="http://masspublishers.org/2011/09/25/20-mass-newspapers-publish-joint-editorial-today-endorsing-stronger-public-records-open-meetings-laws/">Massachusetts Newspaper Publishers Association</a> website.<br />
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</div>Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com1tag:blogger.com,1999:blog-8139998.post-71696842283389232132011-09-05T11:58:00.000-04:002011-09-05T11:58:50.998-04:00Open Meeting Advisory Commission to Meet Sept. 8The Open Meeting Law Advisory Commission is meeting Thursday, Sept. 8, 2 p.m., 100 Cambridge St., 2nd Floor, Conference Room A, Boston. <div><br /></div><div>Here is the notice of meeting and agenda: <a href="http://www.mass.gov/?pageID=cagoterminal&L=4&L0=Home&L1=Government&L2=The+Open+Meeting+Law&L3=Open+Meeting+Law+Advisory+Commission&sid=Cago&b=terminalcontent&f=government_OMLAC-notice-090811&csid=Cago">OMLAC Notice of Meeting 09-08-11</a>. The meeting is open to the public. </div><div><br /></div><div>(I sit on the OMLAC as the representative of the Mass. Newspaper Publishers Association.)</div>Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com1tag:blogger.com,1999:blog-8139998.post-51311398636468695312011-09-05T11:55:00.000-04:002011-09-05T11:55:00.252-04:00Hearing Tomorrow on Proposed Regs to Allow Remote Participation in Public MeetingsThe 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. <br />
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<div>The proposed regs would allow a member to participate remotely only for:</div><ul><li>Personal illness.</li>
<li>Personal disability.</li>
<li>Emergency.</li>
<li>Military service.</li>
<li>Geographic distance.</li>
</ul><div>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.</div><div><br />
</div><div>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: <a href="http://www.mass.gov/?pageID=cagoterminal&L=3&L0=Home&L1=Government&L2=The+Open+Meeting+Law&sid=Cago&b=terminalcontent&f=government_oml-rfpc-remote-part&csid=Cago">Request for Comment on Proposed Regulations</a>. </div>Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com0tag:blogger.com,1999:blog-8139998.post-35462498660836904172011-08-28T23:02:00.000-04:002011-08-28T23:02:43.026-04:001st Circuit Rules Public Has Right to Videotape PoliceIn a resounding affirmation of the First Amendment, the <a href="http://www.ca1.uscourts.gov/">1st U.S. Circuit Court of Appeals</a> 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 <a href="http://www.ca1.uscourts.gov/pdf.opinions/10-1764P-01A.pdf"><i>Glik v. Cunniffe</i></a> 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. <br />
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</div><div>The ruling comes in the case of <a href="http://gliklaw.com/gliklaw/About_Me.html">Simon Glik</a>, 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." </div><div><br />
</div><div>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. </div><div><br />
</div><div>The 1st Circuit's decision reads like a textbook on the First Amendment. Here is one key passage:</div><div><blockquote>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.</blockquote></div><div>The court emphasizes the the right to film belongs not just to members of the news media, but to everyone:</div><div><blockquote>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.</blockquote></div><div>I should note that the <a href="http://masspublishers.org/">Massachusetts Newspaper Publishers Association</a>, 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.</div><div><br />
</div><div>For a much more detailed discussion of the ruling, see the post by Jeff Hermes at <a href="http://www.citmedialaw.org/blog/2011/victory-recording-public">Citizen Media Law Project</a>. </div>Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com0tag:blogger.com,1999:blog-8139998.post-2123528508629185102011-08-05T09:23:00.000-04:002011-08-05T09:23:22.596-04:00Judge Unseals Search Warrant Documents in Case against Prominent Developer<div>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. </div><div><br />
</div><div>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. </div><div><br />
</div>Read the full story from the Patriot Ledger: <a href="http://www.patriotledger.com/mobile/x1510864757/Judge-rules-O-Connell-search-warrant-unsealed">Judge rules O’Connell search warrant should not be sealed</a>.Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com0tag:blogger.com,1999:blog-8139998.post-55716450985261426842011-08-04T22:02:00.000-04:002011-08-04T22:02:12.445-04:00AG Rules UMass Trustees Committed 'Wide-Ranging and Serious' Violations of Open Meeting LawIn March, I wrote a post here explaining why I believed the UMass Board of Trustees <a href="http://medialaw.legaline.com/2011/03/how-umass-trustees-violated-open.html">violated the Open Meeting Law</a> 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. <br />
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</div><div>Today, <a href="http://www.masslive.com/news/index.ssf/2011/08/attorney_general_martha_coakle_9.html">Ring reports</a> 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." </div><div><br />
</div><div>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. </div><div><br />
</div><div>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.</div><div><br />
</div><div>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.</div><div><br />
</div><div>Still, the opinion is a strong affirmation of the importance of the Open Meeting Law.<br />
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For a PDF of the AG's letter, <a href="https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B6nyDeXLBidjYTA2NDQ1OGUtMmU5NC00MjUwLTg0YmMtZTRmNWE2NjEwZDJl&hl=en_US">click here</a>. </div>Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com0tag:blogger.com,1999:blog-8139998.post-32069943129874052052011-08-01T16:35:00.000-04:002011-08-01T16:35:46.148-04:00The Post in which I Eat CrowIn a post here Friday, <a href="http://medialaw.legaline.com/2011/07/probation-bill-could-shroud-judicial.html">Probation Bill Could Shroud Judicial Discipline</a>, 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.<br />
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</div><div>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). </div><div><br />
</div><div>I may not like the language. But it isn't new. </div><div><br />
</div><div>As <a href="http://en.wikipedia.org/wiki/Emily_Litella">Emily Litella</a> would say: Never mind. </div>Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com0tag:blogger.com,1999:blog-8139998.post-55104267709922900622011-07-29T12:11:00.001-04:002011-08-01T16:38:10.149-04:00Probation Bill Could Shroud Judicial Discipline<i>[Correction added 8/1/11: I got this wrong. The language is not new but rather is taken from existing law. See my post, <a href="http://medialaw.legaline.com/2011/08/post-in-which-i-eat-crow.html">The Post in which I Eat Crow</a>.]</i><br />
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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 (<a href="http://www.malegislature.gov/Bills/187/House/H03644">House 3644</a>) would provide more transparency in probation hiring. For example, employment recommendations in support of candidates for state jobs would be made public records.<br />
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However, one provision of the bill seems that it could have the effect of shrouding judicial discipline in greater secrecy. Under <a href="http://www.malegislature.gov/Laws/GeneralLaws/PartIII/TitleI/Chapter211C/Section6">current law</a> (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.<br />
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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:<br />
<blockquote>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. </blockquote>Although that clause describes itself as "consistent" with 211C, it is anything but. Under 211C, the confidentiality is <i>automatically lifted</i> when disciplinary charges are filed against a judge. Under this language, the confidentiality is <i>never lifted</i>, unless the SJC takes the affirmative step of determining that it should be.<br />
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Unless I'm missing something, this appears to be a major step backward for transparency within the judiciary.Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com0tag:blogger.com,1999:blog-8139998.post-85565789443527185042011-06-29T18:36:00.000-04:002011-06-29T18:36:52.251-04:00AG Releases Figures on First Year of Open Meeting LawA year ago, the new Massachusetts open meeting law <a href="http://medialaw.legaline.com/2010/06/new-open-meeting-law-takes-effect-july.html">took effect</a>, 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.<br />
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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:<br />
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<ul><li>Respond to more than 2,000 telephone and email inquiries from members of public bodies, municipal counsel and the public.</li>
<li>Investigate 116 complaints.</li>
<li>Resolve 51 cases, including issuing 34 determinations and informally resolving 17 complaints. </li>
<li>Conduct or participate in 47 trainings, including seven regional educational forums on the OML.</li>
<li>Develop a comprehensive <a href="http://www.mass.gov/?pageID=cagosubtopic&L=3&L0=Home&L1=Government&L2=The+Open+Meeting+Law&sid=Cago">OML website</a>.</li>
<li>Draft proposed regulations authorizing remote participation in public meetings in certain circumstances.</li>
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Ironically, the report fails to mention some of her office's other achievements under the new law, such as drafting <a href="http://medialaw.legaline.com/2010/06/first-look-at-ags-interim-open-meeting.html">interim</a> and <a href="http://www.mass.gov/?pageID=cagoterminal&L=3&L0=Home&L1=Government&L2=The+Open+Meeting+Law&sid=Cago&b=terminalcontent&f=government_Regulations_940CMR29&csid=Cago">permanent</a> regulations to implement the new law and drafting an <a href="http://www.mass.gov/Cago/docs/Government/OML_Guide_07012010.pdf">Open Meeting Law Guide</a>.<br />
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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, <a href="http://medialaw.legaline.com/2010/08/after-four-months-ag-replaces-open-gov.html">left after just four months</a>. 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.<br />
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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.<br />
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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.Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com1tag:blogger.com,1999:blog-8139998.post-74902564691695374552011-06-16T20:55:00.000-04:002011-06-16T20:55:06.453-04:00Hypocrisy about Transparency on Beacon Hill<div>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 <a href="http://www.boston.com/news/local/massachusetts/articles/2011/06/16/ex_mass_speaker_convicted_in_corruption_case/">few calls for more ethics changes on Beacon Hill</a>. </div><div><br />
</div><div>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. </div><div><br />
</div><div>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. <br />
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As a matter of fact, the legislature has also exempted itself from the public records law.<br />
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Together, the open meeting law and the public records law are the two primary laws designed to ensure transparency in government.<br />
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And the legislature has exempted itself from both. But then it says there's nothing more it can do to combat corruption. Hypocrisy.<br />
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</div><div>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.</div><div><br />
</div><div>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:</div><div><br />
<ul><li><a href="http://www.malegislature.gov/Bills/187/Senate/S01625">Senate Bill 1625</a>, sponsored by Sen. Bruce Tarr.</li>
<li><a href="http://www.malegislature.gov/Bills/187/House/H00848">House Bill 848</a>, sponsored by Rep. Thomas M. Stanley.</li>
<li><a href="http://www.malegislature.gov/Bills/187/House/H02594">House Bill 2594</a>, sponsored by Rep. Marc T. Lombardo.</li>
<li><a href="http://www.malegislature.gov/Bills/187/House/H03037">House Bill 3037</a>, sponsored by Rep. Steven L. Levy.</li>
</ul></div><div>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. </div>Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com3tag:blogger.com,1999:blog-8139998.post-24347655969751502022011-06-01T17:38:00.000-04:002011-06-01T17:38:30.110-04:00Vt. Gov. Signs Bill Strengthening Records LawAssociated Press via Newstimes.com: <a href="http://www.newstimes.com/news/article/Vt-gov-signs-bill-strengthening-public-access-1404510.php">Vermont Governor Signs Bill Strengthening Public Access</a>:<br />
<blockquote>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. </blockquote><blockquote>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.</blockquote>Kudos to Vermont. <br />
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<a href="http://www.newstimes.com/news/article/Vt-gov-signs-bill-strengthening-public-access-1404510.php#ixzz1O3wayEhQ">Read more</a>.Bob Ambrogihttp://www.blogger.com/profile/15138223577884298271noreply@blogger.com0