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.

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.