Amicus Briefs and Letters 2023

To Mass. Trial Court Re: Electronic Access to Criminal Case Information (Dec. 21, 2023)

We want to bring to the court’s attention what we believe is a violation of its rules on accessing electronic records and ask that this violation be immediately remedied. According to the Uniform Rules on Public Access to Court Records Rule 5: Remote Access to Electronic Court Records, certain information about criminal cases must be accessible to the general public. . . . As of today, much of this information appears to be missing for members of the general public searching criminal cases using the state’s online court records portal. (This doesn’t seem to be case for attorneys and other non-attorneys granted elevated access to the system). While docket and calendar information for criminal cases in Superior Court appear to be available online for those without an attorney login, the same information is not provided for Boston Municipal Courts and District Courts where the majority of cases are heard.

Mack v. Office of the District Attorney of the Bristol District (Mass. 2023)

The District Attorney appeals the Superior Court’s judgment and asks this Court to misconstrue the Policing Reform Law to drastically restrict the misconduct-investigation carveout in direct contravention of the statute’s text and purpose. The Legislature explicitly determined that the need for transparency and accountability in policing override privacy concerns when it comes to “records related to a law enforcement misconduct investigation.” G.L. c. 4, § 7, cl. 26(c). Should the Court accept the District Attorney’s interpretation, it would rewrite the statute and sanction shielding records the Policing Reform Law was designed to bring into public view. Such an interpretation would have dangerous repercussions in the Commonwealth, particularly for its minority citizens who are disproportionately victims of unjustified use of force by police.

To N.H. Dept. of Education Officials Re: ED 306 Educational Reforms Special Committee (Oct. 17, 2023)

Our organizations believe the 13-member committee formed by the National Center for Competency-Based Learning (NCCBL) under the direction of the Department of Education “to facilitate a revision of the ED 306 Minimum Standards Administrative Rules” is subject to New Hampshire’s right to know law, RSA 91-A.

To U.S. Attorney General Garland Re: Raid of Journalist’s Residence (Oct. 4, 2023)

The undersigned broadcasters, press freedom organizations, and civil liberties organizations write to express concern, and call for greater transparency from the Department of Justice, regarding the raid of journalist Tim Burke’s home, and seizure of equipment and work product, as part of an investigation into alleged computer crimes in the course of his newsgathering. There is significant public interest in Burke’s case. That interest is compounded by the nationwide outrage following the August police raid of the Marion County Record based on allegations of computer crimes by its reporters. Given these and other investigations, journalists around the country are left uncertain about whether they could be prosecuted for acts of routine journalism on the mistaken grounds that they violated state or federal computer crime laws.

To U.S. Supreme Court Re: Making Live Audio at the Supreme Court Permanent (Sept. 13, 2023)

A strong public interest exists in following the proceedings of the nation’s highest court as they occur in real time. Media outlets provide the public with links to Supreme Court audio livestreams so their audiences can hear directly from the justices, unfiltered and in real time, about the legal questions pending before the Court. Using live audio of oral arguments, a greater number of journalists across the country can timely and accurately quote advocates and justices directly instead of scribbling down notes in person and attempting to summarize the argument after-the-fact.

Columbia Plaza Associates v. Northeastern University (Mass. 2023)

The Court should re-orient its anti-SLAPP caselaw to more faithfully track the language of the statute itself, and the legislative purposes revealed in that text. Such a recalibration will expedite the resolution of these cases and protect those who wish to petition the government from crippling legal fees and the fear of liability, as the Legislature intended.

To N.H. Right to Know Ombudsman Re: Proposed Rules (Sept. 6, 2023)

We initially cite the Preamble of New Hampshire’s Right to Know Law at RSA 91-A:1. It reads as follows: “Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.” We believe that the rules promulgated by the Right to Know Ombudsman should be consistent with and supportive of these constitutional and statutory presumptions in favor of disclosure. Furthermore, we believe that the Ombudsman’s Office should exercise caution in setting out restrictive rules on access to documents.

To Vermont Judiciary Re: Online Access to Court Records (Aug. 23, 2023)

Our conversations with journalists and transparency advocates in Vermont have highlighted continued issues with the poorly designed system . . . These issues appear to be the result of policy choices, not technological barriers, and are therefore fixable — and we believe fixing them is in the best interest of both the judiciary and the public.

To Warwick City Council Re: Open Meeting Law Concerns (Aug. 1, 2023)

Like many Warwick residents, our organizations – the ACLU of Rhode Island and the New England First Amendment Coalition – have viewed a recording of the City Council’s July 17, 2023 meeting at which resident Robert Cote was barred from speaking and escorted out of the meeting during the “public comment” period because he sought to speak about a Providence Journal article involving Vice-President Travis. We are deeply troubled by the actions taken against Mr. Cote that evening as we believe they are not only contrary to the letter and spirit of the Council’s public comment policy, but they raise serious First Amendment concerns.

Testimony in Support Hybrid Access for Public Meetings in Massachusetts (July 26, 2023)

By requiring public bodies to provide hybrid access, Senate Bill 2024 and House Bill 3040 allow journalists across the state to attend multiple meetings remotely and provide much needed local coverage that would not otherwise exist. At the same time, the bills require public bodies to meet in person so journalists, not to mention other constituents, can still meet offline with officials and have conversations not easily had via Zoom.

To U.S. Senate Re: Amendment 218 to S. 2226 (July 20, 2023)

SA 218 would give members of Congress and their families a potent means of forcing private entities to scrub “covered information,” as defined, from the public domain, which could impair newsgathering by limiting the store of available information to reporters as well as creating uncertainty for journalists on whether they are directly covered. While the definition of covered information is narrower than the Judicial Security and Privacy Act on which SA 218 is based, it still includes data — including, for example, primary or secondary home addresses, home or personal phone numbers and emails, and historical geolocation information — that may be in the public interest and is of value to journalists.

To Members of the City of Barre Diversity and Equity Committee (June 21, 2023)

The New England First Amendment Coalition and the Vermont Press Association respectfully wish to express our shared concern about a recent incident where committee members asked an attendee of the committee’s public meeting to stop recording the meeting. Although we understand the committee’s desire to keep attendees and viewers local, we write to remind the Committee that any member of the public may validly record public meetings under Vermont law. The Committee may not prohibit members of the public from engaging in their right to record future public meetings.

To President of Nashua Board of Aldermen Re: Ordinance O-22-024 (May 5, 2023)

We write to express our concerns with a recently-enacted ordinance, O-22-024, which was adopted September 14, 2022 at the Board of Alderman meeting. This ordinance, which provides that at Board of Alderman meetings, “Crude, vulgar, profane and/or obscene remarks are prohibited,” violates Part I, Article 32 of the New Hampshire Constitution which protects the right of New Hampshire citizens to peaceably assemble to petition their elected representatives.

New Hampshire v. Adam Montgomery (May 2, 2023)

The Petitioners hereby assert that the records remain under seal without a compelling interest justifying such closure. The processes of the Court and the role of the County Attorney’s Office in cases of this nature are matters of grave public interest and concern. Nowhere within the field of governmental accountability is the light of public scrutiny more critical than when it shines within our courts of law. None of the alleged interests advanced by the defendant in his Objection to the Motion to Unseal or in his Motion to Reconsider justify keeping the requested records sealed, for all of the reasons articulated by this Court’s April 20, 2023 Order.

Human Rights Def. Ctr. v. Me. Cnty. Comm’rs Ass’n Self-Funded Risk Mgmt. Pool (Maine 2023)

At the heart of this case is a question of utmost interest to the public: how much money did Kennebec County and its insurer, the Maine County Commissioners Association Risk Management Pool (the “Risk Pool”) pay a Black man who alleged he had been beaten and pepper sprayed by a white guard at the Kennebec County jail? The answer should have been reasonably easy to find out— it is undisputed that information relating to settlement agreements between individuals and public entities is subject to disclosure under the Maine Freedom of Access Act (FOAA). But instead, what began as a straightforward FOAA request resulted in over a year-and-a-half of time- and resource-consuming advocacy that ultimately revealed an overarching scheme of secrecy that unlawfully shields settlement amounts from the public. . . . By intentionally omitting settlement sums from documents stating the terms of the settlement and by evading FOAA requests for that information, the Risk Pool has engaged in a bad faith attempt to withhold public records. Given this bad faith, requiring the Risk Pool to pay reasonable attorney’s fees to HRDC is necessary to deter the Risk Pool and other similar public entities from violating the FOAA, and to compensate HRDC for the time it spent litigating this appeal.

To Maine Joint Standing Committee on Judiciary Re: LD 1397 (April 10, 2023)

A police officer who is disciplined should not have any greater privilege of confidentiality than a school teacher, a county administrator, or any other public employee. . . . Through this bill, the Legislature requires much needed public access to the disciplinary records of all public employees. It prevents those records from being destroyed or deemed confidential based on collective bargaining agreements. The bill also requires agencies to provide enough written detail in disciplinary records for the public to understand the underlying behavior and ensures that all disciplinary records are retained for a reasonable period of time to be determined by the State Archivist, not individual agencies that might otherwise favor secrecy.

To R.I. House Committee on State Government and Elections Re: House Bill. No. 5454 (April 5, 2023)
To R.I. Senate Judiciary Committee Re: Bill No. 420 (April 4, 2023)

This legislation is a much-needed common sense update to our public records law, a statute that has not been significantly reformed in more than a decade. As our fellow Access/RI members will also explain in their own testimony, S.420/H.5454 will help strengthen the state’s Access to Public Records Act in many ways. These changes — most notably those pertaining to police records, official correspondence and 911 calls — will result in more transparency and accountability. The changes will also bring Rhode Island further in line with other states that already offer much of what S.420/H.5454 provides. While we fully support the testimony to be given by other Access/RI members and urge you to take into account their perspectives, our testimony focuses on the two provisions of S.420/H.5454 that address the confidentiality of 911 calls and the release of police-worn body camera footage.

Berge v. School Comm. of Gloucester (1st Cir. 2023)

Both the Supreme Court and this Court have repeatedly made clear that “state action to punish the publication of truthful information seldom can satisfy constitutional standards. [T]he press,” including citizen journalists, “must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.” When information involves a matter of public concern, the First Amendment protects publishers from both prior restraint and subsequent punishment, absent a demonstrated need to vindicate a state interest of the “highest order.”

To Supreme Court of Vermont Re: Proposed Revisions to Rule 43.1 (Feb. 13, 2023)

We hope our comments here inform and underscore the need for additional revisions addressing access for non-litigants. Changes to the current court rules should make clear that any hearing that would otherwise be in-person and open to the public shall also be accessible to all members of the public remotely. There should be no difference between the access courts provide the public in-person and what they provide online.

Courthouse News Service v. Smith and Commonwealth of Virginia (4th Cir. 2023)

As members of the news media and of organizations that defend the First Amendment and newsgathering rights of the press, amici have a strong interest in ensuring that the public’s presumptive right to inspect judicial records under the First Amendment is not infringed and that unconstitutional, speaker-based restrictions on the exercise of First Amendment rights are not imposed.

To Maine Chief Justice Stanfill Re: Fees to Inspect or Copy Electronically Filed Records (Jan. 20, 2023)

These fees are excessive on their face in relation to the actual incremental cost of providing public access to documents that are already available over the internet to litigants, and they impair the ability of journalists to report on matters of public concern. The fees violate Rule 14 of the Maine Rules of Electronic Court Systems (“RECS”), which requires that fees for public access be reasonable, and the United States Constitution, which prohibits the government from turning a profit by imposing fees as a condition to the exercise of First Amendment rights.