Amicus Briefs, Letters and 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 amicus brief 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 President Biden Re: Transparency Commitments for the Summit for Democracy (June 17, 2022)

We, a coalition of civil society organizations based in the United States, were asked to indicate our top three requests for the United States government to commit to implementing as part of the Summit for Democracy with respect to federal transparency. . . . Civil society will judge the success of the Democracy Summit and this administration’s efforts to strengthen our democracy based upon whether the United States government makes and implements significant commitments with respect to transparency in the United States.

To Uniform Law Commission Re: Redaction of Personal Information from Public Records (June 17, 2022)

This letter is on behalf of 26 government transparency organizations concerning the work of the Uniform Law Commission’s study committee on Redaction of Personal Information from Public Records. We understand the committee to be considering recommending that model legislation be drafted to provide for per se redaction from public records of information related to public employees, including judicial or law enforcement personnel, and a right for domestic violence victims and certain other groups to request redaction of personal information from public records. Our organizations have reviewed the study committee’s latest memorandum and have attended one of the committee’s recent meetings. We write to make the Uniform Law Commission and the study committee aware of a number of concerns that our organizations have with the committee’s proposal.

To Vermont Judiciary Re: Administrative Order 49 (June 3, 2022)

We’re concerned about the way some county courts in the state have been using Vermont Supreme Court Administrative Order 49 to limit press access to judicial proceedings. Order 49 allows courts in the state to make temporary changes to their rules and operations in response to COVID-19 safety concerns. The order, first issued in 2020, was recently extended to August 31. While we question the necessity of the order given that other branches of the government are no longer following similar safety protocols, our primary concern is how a small number of county court judges are using the order as justification to restrict the access of broadcast journalists to their court rooms.

To U.S. Supreme Court Re: Rule 34.7 (April 27, 2022)

Specifically, we respectfully propose three modifications to proposed Rule 34.7: first, the undersigned recommend adding language to proposed Rule 34.7 that states the strong presumption in favor of access to judicial records; second, we recommend clarifying the standard the Court will use in evaluating motions to seal; and third, we propose that Rule 34.7 require parties to state, in their sealing motion, the period of time they seek to have the material maintained under seal. These proposed changes draw directly from this Court’s precedents and rules adopted by the federal courts of appeals.

Shane v. Regan (Mass. App. Ct. 2022)

This case is of particular importance because it poses the risk that persons who disseminate accurate information will be subject to lawsuits and damages awards not because of factual errors, but because of an assessment of their underlying motives in publishing the truth. The harm caused by such a rule would be compounded by the vagaries of determining what is or is not a matter of private concern that permits inquiry into the motives of a person who speaks the truth.

To Members of the Mass. Governor’s Council Re: Remote Access (March 17, 2022)

In light of Sunshine Week 2022, we are writing to you to request that you maintain the same level of public access to Governor’s Council meetings that the people of Massachusetts have depended on over the last two years. More transparent and accessible government means a stronger democracy for all. That’s why our organizations have teamed up to advocate for permanent virtual access to public government meetings in addition to in-person access. We were discouraged to learn that the Governor’s Council recently discontinued its online streaming of meetings. We hope you will reconsider this decision.

To N.H. House of Representatives Re: HB 1677 (Feb. 20, 2022)

While my clients believe that a vehicle for the resolution of claims alleging abuse at the Youth Development Center is an admirable goal, the provision calling for an amendment to RS.A. 91-A:5 creating a blanket exemption for records pertaining to the administration and settlement of these claims is a drastic and draconian step in the wrong direction. An expenditure of one hundred million dollars ($100,000,000) of taxpayer funds, which could increase in the event of a shortfall, requires full transparency and accountability. This bill, to which opposition has already been mounted, cannot be properly administered in secrecy.

Motion to Intervene in State of New Hampshire v. Amuri Diole (N.H. 2022)

The records now sealed in this case that alleges serious criminality should be available for the public’s viewing and inspection. The mental health issues of the defendant have been the subject of extensive court proceedings and those records are readily available to the public. . . . The processes of the Court and the role of the County Attorney’s Office in cases of this nature are matters 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.

Testimony Against N.H. SB 342 (Jan. 25, 2022)

[The bill] could be construed to expand the circumstances under which governing bodies can prevent disclosure of meeting minutes of nonpublic sessions — including with respect to “personnel discipline and investigations.” . . . We believe that this Committee should deem this bill inexpedient to legislate for two reasons. First, this area of law concerning how public “personnel discipline and investigation” information should be handled is currently in flux. . . . Second, though this may not be the intent, we are concerned that this bill would weaken the law — and the recent Union Leader Corp. v. N.H. Police Standards and Training Council decision — in making information concerning “personnel discipline and investigations” less public, particularly insofar as this bill could be construed to eliminate Union Leader Corp.’s public interest balancing test in construing RSA 91-A:3’s transparency provisions, thereby mandating secrecy of this information in meeting minutes without examining the public’s interest.

Testimony in Support of R.I. 21-H 6602 (Jan. 25, 2022)

Our organizations strongly support H 6602, which clarifies that the internal affairs reports of law enforcement agencies are public records, notwithstanding personally identifiable information therein, regardless of how the investigation was initiated. We believe that the public interest is paramount with respect to how law enforcement investigate complaints, regardless of their origin. . . . Without transparency about internal affairs complaints the public will not know whether law enforcement agencies are able to police their own effectively. If a complaint is initiated internally it does not diminish the public’s interest in knowing the results. From the standpoint of accountability for alleged misconduct, how can the origin of a complaint matter?

Egbert v. Boule (U.S. 2022)

Since 1971, this Court has recognized a damages remedy when federal officials violate the Constitution’s “search-and-seizure” guarantees in the “common and recurrent sphere of law enforcement.” And for just as long, the federal courts have recognized “that the irresistible logic of Bivens leads to the conclusion that damages are recoverable in a federal action under the Constitution for violations of First Amendment rights” as well. . . . Petitioner asks this Court to tear down the deterrent that has tempered retaliation in diverse jurisdictions for decades now — arguing not only that Respondent’s claim should fail, but that damages should never be available when federal officials violate the First Amendment. Petitioner is wrong in particular and wrong as a general matter.

Testimony Against LD 1529: Amending the Constitution of Maine to Create a Right to Privacy (Jan. 24, 2022)

We understand the need for personal privacy, particularly from government intrusion, but we have grave concerns that the language contained here is overly broad and will implicate First Amendment-protected activities and entitlements under the Freedom of Access Act. Logistically, it will also create havoc for businesses and organizations that collect and use personal information.

Project Veritas v. New York Times Co. (N.Y. App. 2022)

For two months the New York Times (“the Times”) has been restrained by court order — under threat of contempt — from disseminating or reporting on newsworthy material that is unrelated to the underlying defamation case in which the restraint was imposed, will play no role in that case, and was obtained through everyday newsgathering entirely outside of the discovery process. In its Decision below, the lower court further ordered the Times to relinquish possession of this material, destroy any electronic copies, and refrain from disseminating the material to any person. As such, the Decision is not just an unconstitutional prior restraint on speech, it also threatens to convert the judiciary’s authority to manage discovery into a potent means to suppress public interest newsgathering and reporting.