Search Warrant Affidavit Open to Public, SJC Rules

In 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.

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.

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.

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.

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.

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."

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.

The case is Commonwealth v. George W. Prescott Publishing Co., LLC.

The Massachusetts Newspaper Publishers Association, 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. 

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.

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.

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.

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.

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.

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.

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.

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.

City Delays Records Release to Check for 'Enemies'

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

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

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

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

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

[Hat tip to the blog Open Records.]

Legal Skirmish over Civil War Psych Records

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

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

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

Lowell Sun Wins Appeal on Cop’s Records

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

State Orders Release of Parking Scofflaws' Names

The Massachusetts Secretary of State's office has ruled that the public has a right to know the names, addresses and amounts owed of the top 10 parking scofflaws in the town of Watertown. In a Dec. 24 letter published by the Wicked Local Watertown Blog, state Supervisor of Public Records Alan N. Cote ordered the town to release the information, which the Watertown TAB had requested last May.

The town had refused to comply with the newspaper's public records request, citing both the federal Drivers Privacy Protection Act and the fact that the records are maintained for the town by an outside contractor. Cote ruled that the federal law does not apply to the records in question and that the town's use of an outside contractor does not relieve it of its obligation to comply with the public records law.

[Hat tip to Media Nation.]

Debt to Town No Reason to Deny Records Request

Can a town deny a public-records request on the grounds that the requester still owes money for an earlier request?

No, according to a ruling made by Alan Cote, the Massachusetts supervisor of public records. As reported by the Brockton Enterprise, Cote has decided that Rockland Town Administrator Allan Chiocca was wrong to deny a resident's public records request for the reason that he still owed the town payment for past requests.

"You have failed to provide sufficient justification for withholding these records," Cote told the town administrator.

Lines drawn in battle to open government

The Springfield Republican kicks off Sunshine Week with a piece on the need to reform Massachusetts public records and open meeting laws: Lines drawn in battle to open workings of government.

Public Records Panel Friday in Boston

I received the following announcement from Bruce Mohl, editor of CommonWealth Magazine:

January 30 , 2009
Hard Data: A panel discussion on the Massachusetts Public Records Law
10:00 a.m. to 11:30 a.m.
The State House
Room A-2
Boston, MA

CommonWealth magazine will host "Hard Data: A panel discussion on the Massachusetts Public Records Law." Join legislators, lawyers, and journalists as they explore why the law designed to shed light on the inner workings of state and local government is instead leaving much of the bureaucracy in shadows, if not total darkness. The panel will feature Alan Cote, the state's supervisor of public records; Rep. Antonio Cabral, who has filed legislation amending the Public Records Law; Walter Robinson, a long-time investigative reporter with the Boston Globe who now teaches at Northeastern University, and Jonathan Albano, a partner at Bingham McCutchen. Moderated by CommonWealth Editor Bruce Mohl.

Click here to rsvp or call (617) 742-6800 ext. 120.

A Call for a Public Access Task Force

I tend to equate the suggestion, "Appoint a committee," with "Avoid a decision." But the more I read about the need for reform of Massachusetts' open-government laws, the more frustrated I get at lawmakers' lack of action. I now believe that this is one problem that appointing a committee could actually help fix. It should be a bipartisan task force, appointed by the governor, with a mandate to study the state's open meetings and public records laws and recommend a concrete slate of reforms. The committee should include state and local government officials, journalists, citizens, lawmakers, law enforcement officials, legal advocates and other interested parties.

Colman Herman's piece in the current issue of CommonWealth convincingly makes the case for the need for reform of the public records law. For the last two legislative sessions (that's four years) I and many others have presented the same case for the open meeting law. As I've argued in op-eds in The Boston Herald and The Boston Globe, in blog posts and in testimony before the legislature, the Massachusetts open meeting laws are among the weakest in the nation, with no consequences for the individual officials who break the law.

The need for reform is hardly breaking news. In addition to my law practice, I am executive director of the Massachusetts Newspaper Publishers Association. When I first took that job in 2004, the first major issue the membership asked me to tackle was public access. Their reporters and readers had complained about the escalating decrease in access ever since 9/11. We decided to focus on open meetings because that was where we saw the greatest need -- or, put another way, where we saw the least compliance with the law. We feared that pursuing an agenda of more comprehensive reform would meet multiple roadblocks.

But as Herman's piece and other recent developments help illustrate, public records and open meetings are not separate issues to be dealt with in different legislative bundles. My sense -- I need to double check my facts on this -- is that most states' laws address access to meetings and access to records in a single legislative scheme. This makes sense. It makes the applicable laws easier to find, easier to understand and easier to enforce. Perhaps this might be the first issue that this task force should take up.

Our state's public access laws are antiquated, unwieldy and often ineffective. If we are to achieve meaningful reform of these laws, there must be thorough study and thoughtful deliberation. That level of careful study rarely occurs in the course of a legislative session. If it is ever going to happen, I have come to believe, it must be through an officially sanctioned task force. Let the task force fashion a reform bill and hope the legislature then has the guts to act on it. In a state that has too long opted to avoid any decisions on public-access reforms, maybe appointing a committee would break the deadlock.