State Orders Release of Parking Scofflaws' Names

The Massachusetts Secretary of State's office has ruled that the public has a right to know the names, addresses and amounts owed of the top 10 parking scofflaws in the town of Watertown. In a Dec. 24 letter published by the Wicked Local Watertown Blog, state Supervisor of Public Records Alan N. Cote ordered the town to release the information, which the Watertown TAB had requested last May.

The town had refused to comply with the newspaper's public records request, citing both the federal Drivers Privacy Protection Act and the fact that the records are maintained for the town by an outside contractor. Cote ruled that the federal law does not apply to the records in question and that the town's use of an outside contractor does not relieve it of its obligation to comply with the public records law.

[Hat tip to Media Nation.]

Debt to Town No Reason to Deny Records Request

Can a town deny a public-records request on the grounds that the requester still owes money for an earlier request?

No, according to a ruling made by Alan Cote, the Massachusetts supervisor of public records. As reported by the Brockton Enterprise, Cote has decided that Rockland Town Administrator Allan Chiocca was wrong to deny a resident's public records request for the reason that he still owed the town payment for past requests.

"You have failed to provide sufficient justification for withholding these records," Cote told the town administrator.

Lines drawn in battle to open government

The Springfield Republican kicks off Sunshine Week with a piece on the need to reform Massachusetts public records and open meeting laws: Lines drawn in battle to open workings of government.

Public Records Panel Friday in Boston

I received the following announcement from Bruce Mohl, editor of CommonWealth Magazine:

January 30 , 2009
Hard Data: A panel discussion on the Massachusetts Public Records Law
10:00 a.m. to 11:30 a.m.
The State House
Room A-2
Boston, MA

CommonWealth magazine will host "Hard Data: A panel discussion on the Massachusetts Public Records Law." Join legislators, lawyers, and journalists as they explore why the law designed to shed light on the inner workings of state and local government is instead leaving much of the bureaucracy in shadows, if not total darkness. The panel will feature Alan Cote, the state's supervisor of public records; Rep. Antonio Cabral, who has filed legislation amending the Public Records Law; Walter Robinson, a long-time investigative reporter with the Boston Globe who now teaches at Northeastern University, and Jonathan Albano, a partner at Bingham McCutchen. Moderated by CommonWealth Editor Bruce Mohl.

Click here to rsvp or call (617) 742-6800 ext. 120.

A Call for a Public Access Task Force

I tend to equate the suggestion, "Appoint a committee," with "Avoid a decision." But the more I read about the need for reform of Massachusetts' open-government laws, the more frustrated I get at lawmakers' lack of action. I now believe that this is one problem that appointing a committee could actually help fix. It should be a bipartisan task force, appointed by the governor, with a mandate to study the state's open meetings and public records laws and recommend a concrete slate of reforms. The committee should include state and local government officials, journalists, citizens, lawmakers, law enforcement officials, legal advocates and other interested parties.

Colman Herman's piece in the current issue of CommonWealth convincingly makes the case for the need for reform of the public records law. For the last two legislative sessions (that's four years) I and many others have presented the same case for the open meeting law. As I've argued in op-eds in The Boston Herald and The Boston Globe, in blog posts and in testimony before the legislature, the Massachusetts open meeting laws are among the weakest in the nation, with no consequences for the individual officials who break the law.

The need for reform is hardly breaking news. In addition to my law practice, I am executive director of the Massachusetts Newspaper Publishers Association. When I first took that job in 2004, the first major issue the membership asked me to tackle was public access. Their reporters and readers had complained about the escalating decrease in access ever since 9/11. We decided to focus on open meetings because that was where we saw the greatest need -- or, put another way, where we saw the least compliance with the law. We feared that pursuing an agenda of more comprehensive reform would meet multiple roadblocks.

But as Herman's piece and other recent developments help illustrate, public records and open meetings are not separate issues to be dealt with in different legislative bundles. My sense -- I need to double check my facts on this -- is that most states' laws address access to meetings and access to records in a single legislative scheme. This makes sense. It makes the applicable laws easier to find, easier to understand and easier to enforce. Perhaps this might be the first issue that this task force should take up.

Our state's public access laws are antiquated, unwieldy and often ineffective. If we are to achieve meaningful reform of these laws, there must be thorough study and thoughtful deliberation. That level of careful study rarely occurs in the course of a legislative session. If it is ever going to happen, I have come to believe, it must be through an officially sanctioned task force. Let the task force fashion a reform bill and hope the legislature then has the guts to act on it. In a state that has too long opted to avoid any decisions on public-access reforms, maybe appointing a committee would break the deadlock.

Nantucket Ordered to Release Records

Acting on an appeal by the Inquirer and Mirror newspaper, the Massachusetts Division of Public Records has ordered Nantucket officials to release a confidential settlement agreement entered into with a former town employee, the Inquirer and Mirror reports today. The town had denied the newspaper's public records request, citing privacy concerns.

Revised Guide to Mass. Court Records

The District Court Department of the Massachusetts courts has issued a revised version of its Guide to Public Access, Sealing & Expungement of District Court Records. The blog Massachusetts Law Updates says of it:

"This is a publication we have long loved in the law libraries for its clarity in explaining which court records are available to the public and which are not. Unfortunately, it does not explain the process of access, and what information the researcher needs to provide in order to access records. The sections of sealing and expungement are also clearly written, well annotated, and include forms."

Justice Giveth; Justice Taketh Away

Adjacent news items from the Web site of The Coalition of Journalists for Open Government offer in ironic illustration of public-access hypocrisy by the U.S. Justice Department. First comes the good news: The Justice Department has directed all federal departments and agencies that have an FOIA backlog to post a plan by Nov. 1 for reducing the backlog over the next three years. Here is the DOJ memo.

But no sooner does DOJ tell other federal entities to come up with plans for improving public access than it takes steps to cut off public access. CJOG points to Marcia Coyle's Sept. 17 report in the National Law Journal that DOJ has asked the federal judiciary to eliminate public Internet access to plea agreements in criminal case files and all related docket notations. Presently, these are available through the judiciary's PACER system.

The judiciary is seeking public comment on DOJ's request. Comments must be filed by Oct. 26. If you oppose further restrictions on public access to government information, make your voice heard by filing a comment.

California Finds Right to Know Salaries

California's Supreme Court issued two important cases today involving the public's right to know. In one, International Federation of Professional and Technical Engineers v. The Superior Court of Alameda County, the court held that the public has the right to obtain the names and salaries of public employees earning $100,000 or more a year. In the other, Commission on Peace Officer Standards and Training v. The Superior Court of Sacramento County, the court required the Commission on Peace Officer Standards and Training to disclose the names, employing departments and hiring and termination dates of California peace officers.

Both cases grew out of requests by newspapers to obtain the records. The salary case involved a request by reporters at Contra Costa Newspapers that Oakland city officials provide them with the names, job titles and gross salaries of city employees who earned $100,000 or more. The city agreed to provide the information by job classification but refused to link it to employees by name. The issue before the court was whether the information was exempt from disclosure under a statutory public-records exemption for "personnel, medical or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy." Concluding that the exemption does not apply to salary information, the court cited "the strong public policy supporting transparency in government."

In the peace officer case, a Los Angeles Times reporter requested records held in an electronic database maintained by the peace-officer commission. Specifically, the reporter asked for 10 years' data on new appointments, including names, employing department, appointment dates, termination dates and reasons for termination. In denying the request, the commission relied on a penal code provision that makes peace-officer personnel records confidential. But the court found that the provision applies only to types of information expressly listed in the statute, such as medical histories and disciplinary records, but not to the information requested by the reporter.

Bar Discipline Docs Closed to Public

Documents related to attorney discipline in Massachusetts do not fall under the state's public-records law, the Supreme Judicial Court ruled today. The public-records law applies only to the executive branch of government, while the Board of Bar Overseers -- the entity that oversees attorney discipline -- is under the judicial branch, the SJC said.

"This court has construed strictly the scope of G.L. c. 4, § 7, Twenty-sixth, to preclude the public disclosure of documents held by entities other than those specifically delineated in the statute. ... Neither the Legislature nor the Judiciary are expressly included."

The petitioner, Michael L. Kettenbach, had requested all BBO and bar counsel documents relating to a former state judge, who resigned from the bench and assumed inactive bar status after having been found to have violated canons of judicial ethics.

Today's decision is Kettenbach v. Board of Bar Overseers, SJC-09760.

N.H. court eases access to police records

The New Hampshire Supreme Court has issued a ruling that eases access to police investigatory records under the state's Right-to-Know Law. In the Dec. 20 opinion, Murray v. New Hampshire Division of State Police, Special Investigation Unit, the court held that the state police force had failed to meet its burden of showing that release of the requested records would interfere with an ongoing investigation.

The records request came from a Massachusetts man, Frederick J. Murray, whose daughter disappeared three years ago after her car was involved in a one-car accident in New Hampshire. Murray requested numerous records pertaining to the state's investigation of her disappearance, all of which were denied, save for a single, minor exception.

The Supreme Court said that the Right-to-Know Law should be interpreted "with a view to providing the utmost information." The law does not explicitly address police investigative files, so the court said that access should be decided using the six-prong test applied under the federal Freedom of Information Act. The trial court relied on the first prong of this test -- that production of the records "could reasonably be expected to interfere with enforcement proceedings" -- but the Supreme Court found that the state had failed to show this. It therefore remanded the case to the trial court with instructions that the state present more specific information on how disclosure of each record would meet this test.

Foster's Online has this report on the decision.