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 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 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.