Legal Briefs, Lettersand Statements

NEFAC files and joins amicus briefs, letters and statements addressing important First Amendment issues. This is a listing of those documents, as well as others that may be of interest to you. While our main focus is on freedom of information concerns, we will consider supporting any effort that addresses the First Amendment.

If you would like to have NEFAC sign onto your brief, or to have us file one on behalf of your cause, please email our executive director for more information. Briefs, letters and statements from previous years can be viewed here:

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To Milton (Vt.) Library Board of Trustees Re: Public Recording of Open Meetings (Nov. 14, 2024)

It is our understanding that your Board of Trustees may be discussing tonight whether or not members of the public should be prohibited from recording your meetings.1 If this is the case, we strongly encourage you to first consider the information in this letter as it pertains to the public’s right to record. We would also like to learn more about the concerns prompting this discussion and would welcome an opportunity to hear from your members and to provide additional guidance on the issue.

To Mass. Trial Court Re: Lack of Access to Public Kiosks in District Courthouses (Oct. 9, 2024)

Due to a combination of out-of-service kiosks and individuals using kiosks for an unreasonable amount of time, public access can frequently be denied. This is a major concern given that many court records, such as documents in criminal cases, cannot be thoroughly researched remotely but must instead be searched for through these kiosks. We believe this situation can be significantly improved with additional policies and guidance from your office.

To Chief Justice Suttell and General Chief Clerk Boisclair Re: Access to Online Court Records (Oct. 1, 2024)

According to a Sept. 13 article in the Providence Journal, the state judiciary plans to begin making court records accessible online to all members of the public next spring. The platform re:Search by Tyler Technologies reportedly will be used. While we applaud the court’s intentions and look forward to increased accessibility to court records, we are unaware of any public hearing or other opportunity to provide guidance on how this system could best be implemented. Please consider this a request to provide that opportunity. Members of the public and organizations like ours can share important guidance on how the new system could be successfully launched and done so in a way that maximizes transparency.

Comments Re: Proposed Regulations to Rhode Island Policy on Police Body Cameras (Sept. 30, 2024)

By providing the means for greater transparency and accountability in police work, the implementation of police body-worn cameras (BWC) serves as an important oversight tool for both law enforcement and the public. We therefore strongly support their use. However, BWCs can only accomplish this goal if the policies and regulations governing them enshrine that role. It is with this in mind that we offer the following comments

To Mass. Attorney General Andrea Campbell Re: Public Records and the WFMA (Sept. 4, 2024)

We are requesting that you amend your office’s regulations related to the Work Family Mobility Act (WFMA). The law and related regulations pose an impassable barrier for journalists seeking a variety of Registry of Motor Vehicles (RMV) records that were previously public and contain no immigration information — the primary focus of the WFMA. In collaboration with several investigative journalists in Massachusetts, we identified two record types that were once readily available, but are now withheld due to an interpretation of the WFMA we believe is outside the statute’s scope and intent: individual driving records and Commercial Driver’s License (CDL) Records.

To Manchester Mayor Jay Ruais Re: Board of Aldermen Public Commentary Restrictions (July 31, 2024)

This amendment — at least in part — violates Part I, Articles 22 and 32 of the New Hampshire Constitution, which protect the right of citizens to peaceably assemble to petition their elected representatives. These restrictions on speech also violate the First Amendment of the U.S. Constitution. In 2022, the City of Nashua Board of Aldermen enacted a similarly unconstitutional ordinance regulating public speech at its meetings. In pertinent part, the ordinance held that “[c]rude, vulgar, profane, and/or obscene remarks are prohibited.” Following our letter to Nashua officials, they revised the ordinance to address many of our concerns. We urge you to do the same with Rule 3 and revise it in accordance with our guidance below.

To Maine Judicial Branch Officials Re: Online Access to Court Records (July 30, 2024)

Put simply, this new policy conflicts with the court’s own rules and long-standing stated policy objectives. It also appears to conflict with First Amendment and common law presumptions of access to public court records. With a few narrow exceptions, court rules require the same access to records online as is given at courthouses. 12 That was the promise made in 2018. While strides have been taken since then toward the finish line we’re eight years into the 10-year contract with Tyler Technologies with our feet now back in starting blocks.

To Mass. House Legislators Re: Hybrid Meeting Requirements (July 23, 2024)

We were grateful that the House adopted reforms last session to modernize the Open Meeting Law by requiring hybrid meeting access for members of the public. While these permanent reforms were ultimately deferred in favor of continuing the current temporary exceptions to the in-person meeting requirement until March 2025, guaranteeing hybrid access remains a critical way to ensure that all people — especially people with disabilities, people with caregiving responsibilities, and people with limited transportation — can follow and participate in government activity that directly impacts their lives.

To R.I. Supreme Court General Counsel Kathleen Kelly Re: Bill 24-H 7758 (May 21, 2024)

We realize that threats against judicial officers have significantly increased in recent years, justifiably leading to passage of a measure in the U.S. Congress to keep confidential the home addresses of judges. But that law did not go so far as to keep secret their municipality of residence, and we urge that it not be extended to state law either. While we acknowledge that, over our coalition’s objections, the General Assembly passed a similar measure for police officers a few years ago, that unwise action should not serve as a precedent to keep the municipal residences of more and more government officials and employees secret.

Memorandum Re: How the R.I. LEOBOR Bills Take Step Backward in Transparency (May 10, 2024)

Specifically, this section provides that a police chief “shall be prohibited from releasing any video evidence . . . about or concerning an incident or matter of public interest involving [a police officer]” if it relates to summary suspensions imposed for undefined “minor” violations of departmental rules. In other words, this section establishes an absolute ban on public access to body camera footage whenever a “minor” violation of department rules is involved, even if the footage would have previously been accessible under APRA.

To Lt. Gov. Sabina Matos Re: Rhode Island Long Term Coordinating Council Meetings (May 9, 2024)

As you know, the bill does two things to address a problem the Council has run into in obtaining a quorum for its meetings. First, it would reduce the number of members needed for a quorum. Second, it would allow members of the Council to attend meetings remotely. While we have no objections to the first change, we have serious concerns about the second and its impact on government transparency.

To Dartmouth College President Beilock Re: Arrests of Student Journalists During Protest (May 3, 2024)

We are deeply concerned about reports of two Dartmouth College student journalists being arrested while covering a protest on your campus Wednesday night.While we recognize the challenges presented by recent pro-Palestinian demonstrations occurring on college campuses throughout the country, we must also emphasize the need to respect the speech rights of students and to protect the ability of journalists to cover those demonstrations.

To N.H. Senate Judiciary Committee Re: OTP Recommendation on House Bill 1002 (April 9, 2024)

The ACLU-NH, NH Press Association, New England First Amendment Coalition, Union Leader Corporation, and N.H. Bulletin encourage members of this Committee to support HB1002. We believe that the compromise reflected in HB1002 effectively addresses the concerns raised by proponents concerning overbroad email requests while not undermining transparency and accountability.

To R.I. Senate Judiciary Committee Re: S.2256 (March 28, 2024)

We respectfully ask you to pass Senate Bill No. 2256, An Act Relating to Public Records. As we explained last year when this bill was first considered by your committee, this legislation is a much-needed common sense update to our public records law. The Access to Public Records Act has not been significantly reformed in more than a decade. During that time, there have been many changes in technology and in public sensibilities about transparency needs, particularly those within law enforcement. This bill updates APRA to reflect those changes by allowing, for example, public records requests to be filed electronically, certain police records to be released in a reasonable time, and fees to be waived when the information being requested is in the public interest.

To City of Worcester Re: Open Checkbook (March 13, 2024)

We write to raise serious concerns about your decision to end the City of Worcester’s Open Checkbook program and ask you to reverse course and restore the program as soon as practicable. Fiscal transparency is a hallmark of open government. Taxpayers, journalists, and civil society organizations must have access to information about government expenditures to ensure government is functioning appropriately, without corruption or mismanagement. While cybersecurity is a serious issue and should be prioritized by government at every level, there is nothing about Open Checkbook data that poses a unique cybersecurity threat. In fact, the records accessible in Open Checkbook are public under state law and other municipalities and the state government continue to use their own portals. Concerns about hacking related to this data, like any other public data online, can be addressed by implementing and adhering to basic cybersecurity practices and policies.

Opposition to Section 2-5 of the Massachusetts Municipal Empowerment Act (Feb. 27, 2024)

“The Municipal Empowerment Act falls short on ensuring access to public meetings. It will shut people out of the democratic process by only allowing — and not requiring — municipalities to provide hybrid participation options. Giving every government body complete discretion about how to provide public access to their meetings means people with disabilities or other reasons they can’t attend meetings will be completely shut out when city councils, select boards, or school committees decide to hold meetings exclusively in person.

To Mass. Gov. Healey Re: Hybrid Access to Public Meetings (Feb. 27, 2024)

“Respectfully, the Open Meeting Law provisions of the Municipal Empowerment Act are a step backward. These reforms will shut people out of the democratic process by only allowing — and not requiring — municipalities to provide hybrid or remote participation options.”

Trustees of Boston University and Boston Globe Media Partners v. Clerk-Magistrate of the Cambridge District Court (Mass. 2024)

This sex-for-hire matter has attracted wide public attention and media coverage. The matter, unlike neighbor disputes and other minor matters of low public interest typically before a clerk-magistrate, cries out for open proceedings and open access to named individuals and evidence submitted during the hearing. This matter is of significant public importance and interest. . . . The press’s ability to keep the public informed is premised in large part on open access to the court system, and on its ability to examine and report on submitted judicial documents. Non-disclosure to the public would inhibit the public’s understanding of the process and serve to dimmish or undermine the credibility, authority, and integrity of the Clerk-Magistrate’s decision.

To N.H. Ombudsman Thomas Kehr Re: Rules 100, 200 and 300 (Jan. 22, 2024)

Our first concern relates to proposed rule Rko 203.06(b), as it does not contain the language contained in Rko 203.07, allowing for electronic filing, i.e. “unless an electronic system has been instituted pursuant to described in Rko 203.02(b) so as to allow for electronic submissions…” We believe that the electronic filing language should also be inserted as a sub-paragraph (4) to Rko 208.01(a).

To N.H. House Judiciary Committee Re: HB 1002 and HB 1696 (Jan. 16, 2024)

The proposed paragraph VIII to R.S.A. 91-A:4 is a monumental step in the wrong direction that, if enacted, will discourage and prevent the citizenry of New Hampshire from gaining access to public records. The purpose of R.S.A. 91-A is to provide New Hampshire citizens with “…both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people”. Passage of proposed bill 1002 would ensure the opposite result. It should be noted that the proposed language of sub-paragraph (e) is not opposed by NEFAC as it is consistent with the advice given by the New Hampshire Supreme Court in the case of Salcetti v. City of Keene.

To N.H. House Judiciary Committee Re: Amendment to HB 1002 (Jan. 18, 2024)

The ACLU-NH, the New England First Amendment Coalition, the N.H. Press Association, the N.H. Union Leader, and the N.H. Bulletin have reviewed the January 18, 2024 amendment (2024-1097h) to HB1002, which would continue to allow labor, search, retrieval, and redaction costs to be imposed on requesters.  We oppose this amendment for the same reasons that we oppose the original bill.

Support of HB307 as Amended By the N.H. Senate Judiciary Committee (Jan. 3, 2024)

HB307 would significantly improve government transparency by, in the form of mandatory fee shifting, creating incentives for government actors to be more transparent in response to requests made by the public under the Right-to-Know Law. This bill addresses the question of — if a request for public records was meritorious as found by a court — who should bear the burden of the expense of that litigation. The two choices are either the requestor or the public body. Currently under the law, the requester bears the expense of that successful litigation in most cases unless it can be shown, under a high standard, that the public body “knew or should have known that the conduct engaged in was in violation of this chapter.” This bill corrects the error of the current system by ensuring that the public body, not the requester, bears that expense. After all, a court decision requiring public disclosure benefits the entire public, not just the requesting party. Given this public benefit secured by the requester, the requester should not be punished by having to be made to pay the costs of this successful litigation.