Amicus Briefs and Letters 2016

Detroit Free Press v. U.S. Dept. of Justice (Dec. 23, 2016)

Does the Freedom of Information Act require disclosure of booking photos of publicly named, federal indictees who have already appeared in open court?

In Re Gawker Media, LLC (Dec. 5, 2016)

The liquidation plan in this proceeding contains third-party release and injunction provisions that serve fundamental First Amendment interests and avoid exposing individual journalists to unanticipated and inequitable personal liability. . . . Journalists everywhere rely on such indemnification guarantees as a critical protection that allows them to engage in the sort of intrepid newsgathering and publishing that the First Amendment endorses.

To Mass. Supervisor of Public Records Re: Proposed Changes to 950 CMR § 32.00 (Oct. 6, 2016)

We write on behalf of the Steering Committee of the Massachusetts Freedom of Information Alliance (MassFOIA) to commend your efforts to implement Chapter 121 of the Acts of 2016, An Act to Improve Public Records, and to offer suggestions to clarify and strengthen the proposed regulations. . . . We hope these comments will help you refine the draft regulations to avoid potential confusion and ensure public access to information about the workings of our government.

To Josh Earnest, White House Press Secretary Re: Federal Transparency (Sept. 12, 2016)

President Obama may be leaving the White House, but we aren’t going anywhere. Our promise to the American people is to keep fighting for their right to know what their elected officials are up to. To keep fighting for information and images they need to know and see to live their best, most informed, lives as American citizens.

To Rhode Island AG Kilmartin and Superintendent O’Donnell Re: 38 Studios (Aug. 2, 2016)

We are writing to express our deep distress and frustration over your refusal to release any documents related to your agencies’ four-year probe into the 38 Studios debacle. Particularly in light of the legitimate and extraordinarily strong public interest in this investigation, we believe the rationales you have offered for continued secrecy are less than compelling and do not hold up to careful scrutiny. . . . We therefore urge you to reconsider your decision in order to promote the public’s right to know and provide the transparency that Rhode Islanders expect and deserve from this investigation.

Boal v. United States of America (9th Cir. 2016)

The compelled disclosure of a journalist’s unpublished work product or confidential materials has a destructive effect upon the news media’s ability to gather news and report on matters of public concern. Accordingly, the Ninth Circuit has recognized a reporter’s privilege against such compelled disclosure in both criminal and civil proceedings alike. . . .  Moreover, in this case, any proceeding to enforce the military subpoena against Boal, who is a civilian, would have to be brought in federal district court; accordingly, in the interest of judicial efficiency and to protect Boal’s First Amendment rights, this Court should grant Boal the relief he seeks in the instant proceeding.

To Maine CDC Re: Proposed Changes to Data Release Rule (July 25, 2016)

While these changes are intended to protect the privacy of individuals, they are neither necessary nor helpful to the public’s response to infectious disease outbreaks. Worse, they may jeopardize the safety of those who would otherwise learn of potential risks to their health. The type of information that could be withheld under your proposal — the names of schools, community centers and restaurants where outbreaks occur, for example — is crucial to the public’s understanding of infectious diseases and necessary for a measured response to them.

To Rhode Island Gov. Gina Raimondo Re: ‘Revenge Porn’ Legislation (June 15, 2016)

On behalf of the ACLU of Rhode Island, the Rhode Island Press Association, and the New England First Amendment Coalition, we are writing to urge your veto of 16-H 7537 and 16-S 2540, the so-called “revenge porn” bills. We recognize the legitimate and serious privacy issues that are implicated by “revenge porn.” However, this bill is so breathtakingly broad in its reach that it criminalizes activity that involves neither revenge nor porn.

To Superior Court Justice Lauriat Re: Proposed Trial Court Rule XIV (May 4, 2016)

The Proposed Rules reflect significant work and time commitment by the Trial Court Public Access to Court Records Committee (the “Committee”), and we offer the following comments in the spirit of clarifying and improving that work.

Rideout v. Gardner (1st Cir. 2016)

New Hampshire amended its ballot disclosure laws specifically to prevent a person from taking a photograph of a marked ballot and sharing it on social media because, in the words of one representative, the legislature was worried that “showing your ballot on social media could cause undue influence.” What the legislator called “undue influence,” the Supreme Court has called “the essence of First Amendment expression.” A growing percentage of citizens use precisely this form of expression as a way to spur others to vote, and to support a particular candidate. This is not a problem that should be avoided. It is a modern expression of the longstanding hallmark of our democracy, that “debate on the qualifications of candidates [is] integral to the operation of the system of government established by our Constitution.”

Courthouse News Service v. Michael Planet (C.D. Cal. 2016)

As representatives and members of the media, amici frequently seek access to civil proceedings and related court records in order to gather and report news of public concern, and thus have a strong interest in ensuring that such access is, as compelled by the First Amendment, timely afforded. . . . Amici strongly agree with Plaintiff’s argument that Defendant violates the public’s First Amendment right of access to judicial records when it fails to afford prompt, no later than same-day access to newly filed unlimited civil complaints.

Pinkham v. Maine Dept. of Transportation (Me. 2016)

The central issue is whether the Court should construe Section 63 to foreclose a litigant from getting from the Department information necessary to enforce legal rights in court. To answer this question requires consideration of the principle that courts and litigants should have access to all relevant information, and that such access promotes informed decisions by the courts and public confidence in the justice system. Absent a countervailing interest sufficient to eclipse this important principle — and an unmistakable legislative intent to recognize such an interest — exceptions to the Freedom of Access Act, 1 M.R.S, § 4oo-414, should not be construed to create statutory privileges preventing litigants from accessing government records in court proceedings.