Bring lots of quarters

By Dan Kennedy

State officials have ruled that it’s all right for the Cambridge Police Department to charge the Cambridge Chronicle $1,215 for nearly a month’s worth of public records. The Chronicle had sought descriptions of criminal suspects, the addresses of those who had been arrested and the addresses to which police responded between July 1 and 27.

“Given that a large number of documents, which may contain sensitive information about the identities of the victims and witnesses, are required to be properly viewed, I consider this to be a reasonable fee estimate provided by the department,” the Chronicle quotes Alan Cote, the records supervisor for the secretary of state’s office, as saying.

Trouble is, the Chronicle contends that, before June, the police had routinely been making most of that information available. Even though the state has now found that the police are not doing anything illegal by withholding certain types of information from its daily public reports, the police department is nevertheless moving in a direction of less openness — not a good thing for any law-enforcement agency, let alone one that is in the midst of an investigation stemming from the arrest of Harvard scholar Henry Louis Gates.

As I wrote when this first came up in August, the fees being imposed by the police department are an outrageous breach of the public’s right to know. And it’s not being done in isolation. Last month the Boston Globe reported on public officials who are using high fees to discourage bloggers and financially struggling news organizations from obtaining public records.

It’s time for elected officials who believe in governmental openness to rethink the practice of charging high fees for information that, by right, ought to be freely available to the public.

Cross-posted from Media Nation.

Libel battle won, but war remains lost

By Dan Kennedy

A battle has been won over a bizarre and dangerous decision by a federal appeals court earlier this year that truth may not be a defense in libel cases brought by private parties. Unfortunately, the war remains lost.

According to lawyer Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, a jury found recently that the office-supply chain Staples did not act with malice when a manager sent an e-mail to some 1,500 employees informing them he had fired a sales manager named Alan Noonan for violating the company’s travel and expense policies. (Ambrogi points to an article in the National Law Journal, but it’s subscription-only.)

As I reported earlier this year in the Guardian, the U.S. Court of Appeals for the First Circuit, in Boston, ruled that Noonan’s libel suit against Staples could proceed even though the contents of the e-mail were true. The court relied on an old provision of Massachusetts libel law pertaining to “actual malice,” which Judge Juan Torruella wrote should be defined as “ill will” or “malevolent intent.” Torruella earned a Boston Phoenix Muzzle Award for his anti-First Amendment decision.

Although Staples may not spring immediately to mind when one thinks about freedom of the press, the implications for the news media are obvious.

In the 1964 U.S. Supreme Court case of Times v. Sullivan, actual malice is defined as pertaining to a defamatory statement made with knowing falsity, or with “reckless disregard” for the truth. And though Times v. Sullivan applies solely to public officials, a series of subsequent decisions by the Court made it clear that a defamatory statement can never be found libelous if it is true — a principle asserted by free-speech advocates since the 1735 trial of John Peter Zenger.

First Amendment lawyers such as Ambrogi and Robert Bertsche wrote that Torruella should have thrown out the Massachusetts law, on the books since 1902, as unconstitutional in light of Times v. Sullivan.

So far, though, Torruella’s toxic handiwork remains in effect — at least in Massachusetts.

Cross-posted from Media Nation.

Press barred from public tour of public school

By Dan Kennedy

You wouldn’t think that when public officials tour a public school, anyone would be brazen enough to bar a news organization by claiming it’s a “private event on private property.” But that’s exactly what happened on Wednesday, according to the Newton Tab, which had assigned a reporter and a photographer to cover a tour of the $200 million Newton North High School construction site.

The Tab’s Dan Atkinson reports that Mayor David Cohen, a number of aldermen and members of the school’s design-review committee took the tour, but that Dimeo Construction wouldn’t allow the press to tag along — even though the event had been posted as being open to the public.

“It’s an essentially private event on private property,” Cohen spokesman Jeremy Solomon is quoted as saying. “It doesn’t entitle the media to attend.” Solomon added: “Elected officials deserve the courtesy to ask any questions without being concerned about how they’re portrayed in the Tab.”

The Newton North project — the most expensive public school in the history of the state, if not the known universe — has long been controversial. The Boston Globe’s Newton Wiki reports that the current price tag of nearly $200 million has almost doubled since 2003, when Cohen first proposed it. Newton voters approved it in a 2007 referendum.

Based on the facts as reported by the Tab, it’s unclear as to whether officials violated the Massachusetts open-meeting law, which, among other things, forbids private governmental meetings when there is a quorum present. Atkinson writes that “at least” nine aldermen took the tour — well short of a quorum, given that Newton has 24 aldermen. But if a quorum of design-review committee members was present, what took place might be considered an illegal meeting.

More important, what happened to the Tab on Wednesday was not just an affront to the press, but to the proposition that the public’s business should be conducted in public. As Tab publisher Greg Reibman said, “[I]t’s not the Tab that is being punished. It’s the taxpayers who are spending nearly $200 million on this project and they deserve to know how their dollars are being spent.”

Follow-up: Great catch by Michael Pahre, who notes that there is an “on-site inspection” exception to the open-meeting law. So, in all likelihood, no violation of the law took place. “That said,” Pahre writes, “the Newton officials were boneheaded in announcing this as a tour that is open to the public if they don’t want the press to attend.”

Even more: The Tab says that its reporter was allowed to take a tour today. But still no photos (or photographer), please.

Stranger and stranger: On Friday, the Tab posted a photo sent along by Alderman Ken Parker, who took a picture of the construction site on his iPhone during the Wednesday tour. Parker reports that no one tried to stop him, either.

Crossposted from Media Nation.

Some partnerships not subject to Mass. Public Records Law

By Colman Herman

The website of the Rose Kennedy Greenway proudly boasts, “15 acres of new public parkland.”  Note the word “public.”  So wouldn’t you think the Rose Kennedy Conservancy, which runs the Greenway, is subject to the Massachusetts public records law?  If you said yes, you’d be wrong, as citizen-activist Shirley Kressel found.

When the Greenway Conservancy refused to turn over documents to Kressel in 2008, she appealed to the supervisor of public records, Alan Cote, in the secretary of state’s office.  ”I request your determination on the status of this organization as a public body,” Kressel wrote.  ”It is chartered by a Memorandum of Agreement to carry out governmental tasks in managing public spaces; its members are all political appointees . . . ; [and] it is funded by public money . . . .”

In rebuttal, Nancy Brennan, the conservancy’s executive director, told Cote that “the Conservancy is a private, non-profit corporation created under Chapter 180 of the Massachusetts General Laws and is not subject to the Public Records Law applicable to public bodies.”

Court decisions in Massachusetts have established a five-factor test that may be used for determining whether an organization is a government entity for the purposes of the public records law:

1) the means by which the entity was created,

2) whether or not the entity performs an essentially governmental function,

3) whether or not the entity receives or expends public funds,

4) the involvement of private interests, and

5) the extent of control and supervision exercised by governmental officials, agencies or authorities.

Cote employed these five factors in assessing whether the Greenway Conservancy is subject to the public records law, noting that “These factors are cumulative and no one factor is dispositive” and that the “factors must be balanced in order to determine the status of the agency.”

After applying the five-factor test to the Greenway Conservancy, Cote agreed with Brennan, the conservancy’s executive director, ruling that “the Conservancy is not a public entity for the purposes of the Public Records Law.”  In fact, for every single of one of the five factors, Cote found the Greenway Conservancy is not a government entity subject to the public records law.

Brennan did “voluntarily” turn over nearly all of the records Kressel wanted, but held back a list of how much donors had given, which is a key piece of information Kressel was after, she said, to confirm whether or not the conservancy had complied with the terms imposed on it for matching donations.

It’s the same situation with regard to trying to access public records over at Post Office Square Park, formally called the Norman B. Leventhal Park.  It is situated in the heart of the Financial District on land deeded by the City of Boston to the Post Office Square Redevelopment Corporation, aka Friends of Post Office Square, for forty years.  The park’s website refers to the arrangement as a “public/private partnership.”

The park’s general manager, Pamela Messenger, told me that the Friends of Post Office Square is not subject to the public records law.  As far as I have been able to determine, there has been no testing of whether she is right, but I am virtually certain she is.  By the way, public assembly is not allowed at Post Office Square Park.  Nor is sleeping.  And even the sidewalks surrounding the park are controlled by The Friends. Boston park rangers patrol the park.

Joining the Greenway Conservancy and the Friends of Post Office Square is the Boston Common Frog Pond Foundation.  It is headed by restauranteur Tom Kershaw, who told me his foundation too is not subject to the public records law.  The website of the Frog Pond does carry this nice commercial for the man: “Thomas A. Kershaw, Chairman of the Foundation, is a Boston businessman who owns the Hampshire House, Cheers Beacon Hill, Cheers Faneuil Hall Marketplace, and 75 Chestnut, a romantic restaurant and bar on Beacon Hill.”  

Kershaw ultimately did turn over the foundation’s public tax return to me when I explained that IRS regulations required him to do so.  But he couldn’t resist saying, “This is getting to be a pain in the ass.”

Still another public/private entity is something called Boston Connects, Inc., whose website reports that it has a partnership with the City of Boston “to implement an array of community and economic development initiatives designed to improve communities in Boston that have experience[d] chronic divestment over the years.”  When another citizen-activist, Ned Flaherty, appealed BCI’s refusal to turn over the records he requested, Cote, using the five-factor test, ruled that BCI, which receives public funding, is also not subject to the public records law.

Although not a public/private partnership in the same sense, the venerated Swan Boats present a public records problem.  It is a little known fact that the Swan Boats is run by Swan Boats, Inc., a private company that has an agreement with the City of Boston under it which it pays the city a percentage of its revenues. But since Swan Boats, Inc, which actually owns the boats, is a private company, it is not subject to the public records law.

Swan Boats, Inc.’s most recent response to a request for proposals included an income statement that provides precious little information about its financial operations.  For 2008, all the filing reports is: revenue ($460,240), operating expenses ($456,474) and net income ($3,766).  On the same form, they provide comparable skimpy information for 2007, which miraculously reveals virtually the same net income ($3,878).   Could they be working backward to arrive at a low figure to minimize how much they must pay to the City of Boston?

The accounting firm for Swan Boats, Inc., Cohen & Associates, felt compelled to include the following telling note with the income statement: “Management has elected to omit the balance sheets, statements of cash flows and substantially all of the disclosure required by generally accepted accounting principles.”  So what’s a boy to do if he wants to look behind the curtain of the Swan Boats?

Some of the many other public private partnerships in Massachusetts include Emerson’s College’s arrangement with the City of Boston to use Rotch Field. Emmanuel College’s arrangement with the city to use Clemente Field, and The Friends of Teddy Ebersol’s arrangement with the state’s Department of Conservation and Recreation to use the baseball and soccer fields on the Charles River Esplanade.  All of these arrangements limit public access to public fields.  Yet the private groups are not subject to the public records law.

There may be many benefits that accrue to the people in public/private partnerships, but there must be accountably directly to the people.  To that end, there needs to be legislation that will make all private groups that use public space and/or get public funds such as described above subject to the public records law as it pertains to their public/private dealings with government entities.

First Circuit rejects libel appeal

By Dan Kennedy

The U.S. Court of Appeals for the First Circuit in Boston has refused to overturn a ruling (PDF) that defamatory statements made in matters of private concern may be found libelous even if true.

The court has also declined to accept (PDF) an amicus curiae brief filed by several dozen of the largest and most influential media organizations in the country, citing a conflict of interest that would be created if it were to do so. Apparently one of the judges has a tie to a media organization, which would force a recusal.

No word on what comes next. Is it possible that the U.S. Supreme Court will rule on this? The idea that a statement must be defamatory and false in order to be held libelous is so fundamental to our notion of a free press that it’s hard to imagine the ruling will stand, even if it pertains only to Massachusetts, based as it is on a 1902 state law.

From the time I reported on this case for The Guardian, I’ve heard a low buzz suggesting that the ruling may not matter all that much, given that it pertains to private parties — and that, in fact, private persons deserve more protection under the libel laws than public officials and public figures.

My answer to that is that they already do, but that private figures — according to all the libel law that we understand — still have to prove falsehood.

I think the most telling case is that of Gertz v. Robert Welch, a 1974 Supreme Court decision about a libel suit brought by a lawyer who had been falsely defamed by a John Birch Society publication. The court ruled that the lawyer, Elmer Gertz, was a private figure, and would thus not to have to prove “actual malice” as defined by Times v. Sullivan (1964) — that is, he would not have to prove that the Birchers had published defamatory material knowing it was false, or with reckless disregard for the truth. Instead, the court ruled that, henceforth, private figures would have to show negligence at the very least, with the states free to adopt more stringent language if they chose.

Reading the Gertz decision, you can’t help but be struck how the notion of falsehood is raised over and over. The phrase “defamatory falsehood” is used repeatedly. The most famous section of the majority decision, written by Justice Lewis Powell, is built around the principle that libel is a false and defamatory statement of fact:

We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust, and wide-open” debate on public issues. They belong to that category of utterances which “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Remember, Gertz was a private figure. Powell was writing quite specifically about the libel standards that should prevail when a private citizen brings a libel suit, yet he made it absolutely clear that falsehood and defamation are the two key elements of libel.

It’s hard to imagine what the First Circuit is thinking.

Cross-posted from Media Nation.

New England still in a digital ice-age

By Doug Clifton

These days, without so much as taking one step out of your home, you can shop, track the delivery of your purchases,  pay your bills, check your investments, read your newspaper – or anyone else’s, for that matter – look at a satellite picture of your house, trace your ancestry, even file your income tax return. You can do all that thanks to the internet and the digitization of all manner of information. But, oddly enough, in most states you can’t go online to find some of the most basic records your state and local governments produce.

Thanks to a 50-state survey sponsored by the American Society of Newspaper Editors and the National Freedom of  Information Coalition we now know that most states have been glacially slow in joining the digital revolution. 

And the New England states are among the slowest. 

 

Another term for censorship

By Dan Kennedy

Advocates of campaign-finance reform may be well-meaning. In practice, though, reform measures often add up to censorship by another name.

Take, for example, a film called “Hillary: The Movie.” Produced by Citizens United, a conservative group that staunchly opposed Hillary Clinton’s presidential campaign, the movie was banned from television last year by the Federal Election Commission (FEC) on the grounds that it ran afoul of a law that prohibits “electioneering communication” 30 days before a presidential primary or 60 days before a general election.

As Adam Liptak reports in the New York Times, the FEC’s ruling was upheld in the federal courts. The matter is now before the U.S. Supreme Court, which essentially upheld the 2002 law mandating such bans — more commonly known as the McCain-Feingold Act — in its McConnell v. FEC decision of 2003.

Let’s hope the Supreme Court takes full advantage of its opportunity for a do-over. As the legal analyst Stuart Taylor wrote in National Journal in 2001, when the ban was under consideration: “A greater affront to the First Amendment’s core purpose of protecting uninhibited, robust and wide-open criticism of government and government officials could scarcely be imagined.”

A chilling decision about libel

By Dan Kennedy

Last Friday — Friday the 13th, no less — a three-judge federal appeals court panel in Boston issued the most dangerous libel decision in many years. In ruling that truth may not be an absolute defense in matters of private concern, the panel undermined a fundamental principle of First Amendment law.

The opinion, written by Judge Juan Torruella of the U.S. Court of Appeals for the First Circuit, allows Alan Noonan, a sales director fired by Staples, to pursue his libel claim against the company. Staples’s executive vice president, Jay Baitler, had sent an e-mail to some 1,500 employees stating that Noonan had been terminated for violating the company’s travel and expense policies.

Torruella found that the contents of the e-mail were true, but added that, because Noonan is a private figure, the e-mail may have crossed the line into “actual malice.” In reaching that conclusion, Torruella relied on a 1902 Massachusetts law and said that “actual malice” should be defined as “ill will” or “malevolent intent.” Never mind that, in the 1964 case of Times v. Sullivan, the U.S. Supreme Court redefined “actual malice” so that it now pertains solely to statements made with deliberate falsity, or with “reckless disregard” for the truth. (Public officials and public figures must prove actual malice in order to win a libel claim.)

Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, calls the ruling “the most dangerous libel decision in decades.” Longtime Massachusetts newspaper editor William Ketter, now a top executive with the CNHI chain, writes that the decision “could chill aggressive reporting of tough stories for fear that a private individual might end up suing the media even when the published facts are true.”

In an e-mail, Robert Bertsche, a prominent First Amendment lawyer with the Boston firm Prince Lobel Glovsky & Tye, says:

The ruling is troubling on so many levels that it beggars the imagination. Begin with the court’s ruling that one can be found liable in damages for making a statement that is indisputably true — that is a notion that flies in the face of everyone’s most basic understanding of what libel is.

With this decision, the First Amendment has been replaced by the maxim, “If you don’t have anything nice to say, don’t say it.”

Bertsche’s e-mail is well worth reading in full. I’ve posted it on my blog, Media Nation. And for a fuller analysis of the decision, please see my commentary in the Guardian.

It’s possible that the three-judge panel will be persuaded to reverse itself, or that the full appeals court will overturn the panel’s decision. As it stands, the ruling pertains only to Massachusetts. Still, you can’t help but wonder if federal judges will discover similar archaic laws on the books in other states.

Andrew Hamilton, the lawyer for John Peter Zenger, is no doubt turning over in his grave right now. What’s ironic is that Hamilton persuaded a jury to ignore the law and find that Zenger should be acquitted on the grounds that his newspaper’s anti-government diatribes were true.

Nearly three centuries later, we are once again faced with the prospect that truth may not be protected from a libel action. Amazing. And frightening.

Investigative reporter finds public records bonanza

by Mary Schwager

We gripe, we gripe, we gripe. I’m guilty of it. Public records can be tough to get. I’ve filled this website with tales of woe about battling government agencies for records. I’ve even written theme songs to go with their excuses.   
  
In this entry, I’m not griping.  I’m actually applauding a federal office for its admiral work putting potentially life saving records online for anyone to search.  No FOIA required. No bureaucrat attempting to hinder someone with outrageous costs, wait times and red tape. 
  

Do you want to know if your car has a potentially dangerous defect? Has anyone else ever complained about something you suspect just isn’t right ? It’s all online.  Click here to read more in an article I just published.  It’s also an excellent source for journalists to use. 
  
http://www.examiner.com/x-1893-News-You-Can-Use-Examiner~y2009m2d4-How-to-do-your-own-detective-work-if-you-suspect-your-car-has-a-defect

Proposed Massachusetts Public Records law may be thin gruel

By Colman Herman

Representative Antonino Cabral of New Bedford has filed legislation that would make some changes to the Massachusetts Public Records Law. One of those changes would be to give Secretary of State William Galvin’s office broader enforcement powers. That’s a good first step. But much more needs to be done.

The executive branch of state government is subject to the Public Records Law, as are the municipalities. But one-hundred and twelve years ago, the legislature had the unadulterated chutzpah to explicitly exempt itself from the Public Records Law and has not looked back. Sad to say, Cabral’s legislation makes no attempt to fill this gaping void. When asked about this at a State House forum sponsored by CommonWealth magazine, Cabral danced around the issue — the best he could come up with is to say that many legislative meetings are open to the public and that he himself provides documents when asked.