Amicus Briefs and Letters 2019

To U.S. Congress Re: Federal Agency Communication Policies (Nov. 6, 2019)

Over the last 25 years there has been a relatively rapid trend toward federal agencies and others prohibiting staff members from communicating to journalists without reporting to some authority, often public information officers. The restrictions have become, in great part, a cultural norm in the United States. They also have become an effective form of censorship by which powerful entities keep the American people ignorant about what impacts them.

To U.S. Senators Re: Private Prison Information Act (October 2019)

The Private Prison Information Act would strengthen accountability and oversight by requiring non-Federal prison, correctional, and detention facilities holding Federal prisoners or detainees under a contract with the Federal Government to make the same information available to the public as is required of Federal prisons and correctional facilities by FOIA.

Martin v. Rollins (1st Circ. 2019)

The Statute criminalizes the “interception of any wire or oral communication,” Mass. Gen. Laws ch. 272, § 99(C)(1), with “interception” defined as “to secretly hear, secretly record, or aid another to secretly hear or secretly record through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication.” . . . If the decision of the district court is reversed, the Statute would therefore apply to any recording made absent the express consent or objective awareness of all individuals captured in the recording. This would include, for example, recordings made by the news media concerning law enforcement activity conducted in public spaces in which there is no reasonable expectation of privacy “regardless of whether the official being recorded has a significant privacy interest and regardless of whether there is any First Amendment interest in gathering the information in question.”

To Chief Justice Roberts Re: Audio Recordings of Oral Arguments (Oct. 3, 2019)

There is a strong interest nationwide in closely following these proceedings as they occur, in as close to real-time as possible. The Court’s usual policy of releasing audio recordings of oral arguments at the end of the week on which they are heard will impede journalists’ ability to provide same-day coverage of the arguments to readers, viewers, and listeners who rely on the news media for information about these crucial issues of significant public interest.

Butcher v. University of Massachusetts (Sept. 9, 2019)

Amici submit this brief to express their substantial concern with the Appeals Court’s opinion below, which advances a misguided and unduly restrictive interpretation of the “fair report” privilege long recognized under Massachusetts law. The privilege is of fundamental importance to amici because it provides that news organizations who “fairly and accurately report certain types of official or governmental action [are] immune from liability for claims arising out of such reports.”

To Attorney General Neronha Re: MOU with the Diocese of Providence (July 29, 2019)

Section V(H) troubles us because it declares in advance that tens of thousands of records provided to your agency, regardless of their nature, are pre-emptively exempt from disclosure under APRA as “criminal investigatory records.” This strikes us as inappropriate on a number of levels.

To Sen. Moore and Rep. Naughton Re: Police Body-Worn Cameras (July 18, 2019)

While our organizations are sympathetic to the privacy concerns that result from body camera use, we are convinced that House Bill 2120 is an, at best, misguided attempt to protect those interests. The Public Records Law already provides tools law enforcement can use to withhold sensitive information. Those tools include exemption (c) and (f) which protect individual privacy interests and law enforcement investigations, respectively. In addition, House Bill 2120 prevents the public from receiving any benefits from the release of footage because of its wholesale approach to the protection of privacy. The bill simply eschews the much-needed balance the current statute allows.

To Sen. Pacheco and Rep. Gregoire Re: Mass. Open Meeting Law Legislation (July 11, 2019)

While we understand the concerns that prompted Bills H.2740 and S.1899 and the challenges vexatious filings of Open Meeting Law complaints can impose on municipalities, we believe these bills lack the appropriate remedies.  . . . In particular, we strongly encourage you to reconsider the limitations your bills would impose on the Attorney General’s current review process of Open Meeting Law complaints, as well as the five complaint cap and the “unduly burdensome” standard.

To Bridgeport (Conn.) Mayor and Chief of Police Re: Arrest of Reporter (May 10, 2019)

In a letter to Bridgeport Police Department Chief of Police Armando Perez and city mayor Joseph Ganim, NEFAC called O’Neill’s arrest inexcusable. “While responsible law enforcement is crucial to the well-being of our communities, so is journalism,” according to the May 10 letter. “There is simply no excuse for a journalist to be arrested for doing her job.”

To Maine Joint Standing Committee on the Judiciary Re: LD 1575 and LD 1414 (May 1, 2019)

The Maine Freedom of Information Coalition expressed concern that bills intending to strengthen the Maine public record laws will instead weaken them. The MFOIC is a group of media organizations and open government advocates — including the New England First Amendment Coalition — who work together to strengthen Maine freedom of information laws.

Gubarev v. Buzzfeed (11th Cir. 2019)

The issue presented in this appeal concerns the scope of the privilege for fair and true reports of official proceedings under New York Civil Rights Law § 74. … A resolution of this issue in Plaintiffs’ favor would significantly affect the ability of the journalists on whose behalf amici advocate to report on significant official proceedings, notwithstanding that they do so accurately and fairly. Failure to recognize the proper scope of this privilege would stifle journalists’ ability to report on matters of the greatest importance by threatening them with liability for republishing newsworthy documents that are the subject of important governmental investigations. The ultimate loser of any such ruling would be the public.

To Vermont Supreme Court Re: Digital Access to Public Court Records (April 12, 2019)

The following comments are in response to the proposed rules on public access to electronic court records. Overall, we applaud the court’s effort to provide such access to its records. This type of accessibility is crucial to an informed citizenry and an accountable government. While we recognize the enormity of moving such a large body of records online, we have several major concerns with the rules as they are written.

To Maine Supreme Judicial Court Re: Digital Court Records Access Rules (March 27, 2019)

The MFOIC [and NEFAC] strongly endorse the Court’s general public-is-public approach toward access to court records, but is concerned that (A) access be timely, as soon as reasonably possible after records are filed with the court; (B) that certain categorical exemptions to access are overbroad and unnecessary in all cases; (C) that the draft rule references an incorrect standard for granting and lifting seals on court records and that the referenced standard, if not revised, will lead to more secrecy in court records than constitutional and common law standards allow; and (D) that any fee schedule the court may adopt not become an unreasonable barrier to public access.

Food Marketing Inst. v. Argus Leader Media (March 25, 2019)

Petitioner argues that the plain text of Exemption 4, 5 U.S.C. § 552(b)(4), permits government agencies to withhold records requested under FOIA if a third party claims that the information is either kept private, or, alternatively, that disclosure might lead to “negative publicity” or “could” result in some financial harm. Petitioner’s purported textual argument, however, is irreconcilable with recent amendments to FOIA that impose a “foreseeable harm” requirement that must be satisfied before agency records can be withheld.

To Conn. Judiciary Committee Re: Bill No. 970 (March 6, 2019)

Our coalition strongly opposes Bill No. 970, “An Act Concerning the Confidentiality of Evidence Seized in a Criminal Investigation.” This legislation is written too broadly and ambiguously. It’s scope isn’t clear and could, as a result, give unilateral authority to law enforcement to keep secret all records gathered in nearly every criminal case. Even when interpreted narrowly, this legislation is unnecessary given the state’s existing police records exemption to the Freedom of Information Act. There is simply no reason for this bill other than a strong preference by law enforcement and prosecutors not to be supervised by the public.

Courthouse News Service v. Yamasaki (Jan. 29, 2019)

The First Amendment requires contemporaneous access to civil complaints upon their filing … In today’s news cycle, where stories build upon each other and are updated by the minute online, it is important that the first news stories about a lawsuit be accurate and complete, with as much information as possible derived from official, primary sources.

To U.S. Dept. of Interior Re: Proposed FOI Regulations (Jan. 28, 2019)

As detailed herein, the News Media Coalition is gravely concerned about the Proposed Rule—many provisions of which are flatly inconsistent or incompatible with the Act, and would harm journalists’ ability to gather and report information to the public about the actions of the Department and its personnel.

Doyle v. Burlington Police Dept. (Jan. 28, 2019)

Without this access, citizens must rely on the statements of public officials to learn what their government is doing … While the process of providing public records for inspection entails some monetary costs, the Vermont Legislature has time and again made the policy choice to have taxpayers bear the burden of those costs rather than shift expenses to the individual requester.

Comments Re: Media Registration and Use of Recording Devices in Vt. Courtrooms (Jan. 14, 2019)

In summary, we believe these changes are unnecessary as state courts already have adequate tools at their disposal to protect the privacy interests of witnesses and jurors. We are also un- comfortable with the court enforcing a registration process for journalists and defining who is and is not a member of the professional media — a definition that is drawn too narrowly and neglects the interests of academics, students and other researchers.