Worcester Telegram: Making government more ‘open’

“Changes proposed to toughen the penalties for violating the state’s Open Meeting Law could leave public officials facing stiff fines,” Worcester Telegram & Gazette reporter Gerard F. Russell writes about the MNPA’s bills. “Proponents say the changes would put teeth into the Open Meeting Law. Critics say the legislation would chill the desire of citizens to seek elective office or, for that matter, volunteer on government boards and commissions.”

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Cape Cod Times wins access to sheriff’s records

The Supreme Judicial Court yesterday ruled that Barnstable County Sheriff James Cummings must provide to the Cape Cod Times the identities of his reserve deputy sheriffs, whose names he has concealed for two years.

The SJC said that the names are public records under G.L. c. 66, s. 10, and must be made available for examination and inspection.

The sheriff had contended that the records were private because the reserve deputies have no law enforcement duties and also that the records belonged to the private Barnstable County Sheriffs Association.

In affirming libel award, SJC strikes blow to protection of sources

The Supreme Judicial Court yesterday issued its decision in Ayash v. Dana-Farber Cancer Institute, and the outcome was a blow to the news media. The SJC upheld the trial judge’s entry of default judgment against the Boston Globe because of the Globe’s refusal to reveal the identities of confidential sources. Based on that default judgment, a jury awarded damages against the Globe of $2.1 million — $300,000 for economic damages and $1.8 million for emotional distress – which the SJC also upheld.

The lawsuit, in which the MNPA participated as amicus, followed from the discovery that two patients in an experimental breast cancer treatment study at Dana-Farber had mistakenly been given an overdose of a toxic chemotherapy drug. One of the patients, Globe health columnist Betsy A. Lehman, died. The plaintiff, Dr. Lois J. Ayash, an investigator in the study, sued Dana-Farmer, Dr. David M. Livingston, the Boston Globe and Globe reporter Richard A. Knox. She accused the Globe of libel and defamation, and sued Knox for intentional interference with contractual relations and for intentional or negligent infliction of emotional distress.

During discovery, Ayash sought to compel the Globe to reveal the identities of its sources. Concluding that the sources’ identities were central to the plaintiff’s claims, the judge ordered their disclosure. When the Globe continued to protect their identities, the judge imposed a series of escalating fines. After an interim appeal and remand, Ayash again sought to compel the Globe to disclose its sources. When the Globe continued to refuse, Ayash asked for sanctions. As a sanction, the judge ordered that judgments of liability enter in favor of Ayash against the Globe and Knox. Because his earlier monetary sanctions had not succeeded in securing the Globe’s compliance, the judge reasoned, the alternative sanction of default judgment was warranted. With liability determined by default, the case was submitted to a jury for assessment of damages. The jury came back with an award against the Globe of $2.1 million.

On appeal, the SJC concluded that the judge had not abused his discretion in entering the default judgment.

“At the time of the judge’s ruling, the overdose incidents had occurred over six years previously. There is nothing in the record to suggest that Knox continued to receive or collect information pertaining to the overdoses from these sources that would justify the continued concealment of their identities. The judge concluded that their identities, and information that they potentially could reveal, bore directly on the plaintiff’s claims against Knox and Dana-Farber. …

“Over a period of years, the judge had ordered the Globe defendants to comply with the plaintiff’s requests for discovery of this information, to no avail. The Globe defendants made a deliberate choice to protect Knox’s sources and to forgo their (potentially meritorious) defenses to the claims asserted against them rather than obey the judge’s orders. The judge was not trying to punish the Globe defendants. He clearly felt that he had no alternative method of enabling the plaintiff to obtain the information she needed, and he left open to the Globe the option to remove the default by complying. The question for our review is whether the judge’s order constituted an abuse of the “broad measure of discretion” afforded him. See Sinnott v. Boston Retirement Bd., 402 Mass. 581, 585, cert. denied, 488 U.S. 980 (1988). We conclude that it did not.”

Having affirmed the entry of default judgment against the Globe, the SJC turned to the jury’s award of damages.

“A plaintiff in a successful defamation case is entitled only to fair compensation for actual damages, including emotional distress and harm to reputation (and any special damages which have been pleaded and proved). … Although the damages awarded the plaintiff for the defaulted claims against the Globe defendants may appear high, they were based on evidence that the Globe articles impugning the plaintiff affected her career and caused her a great deal of emotional and psychological anguish. … The judge found no basis on which to overturn the awards as excessive, and neither do we.”

MNPA files bill to toughen open meeting law

In a bid to encourage public officials’ compliance with the state’s open meeting laws, the Massachusetts Newspaper Publishers Association has filed legislation that would toughen the penalties for violators and award court costs and attorneys’ fees to individuals who bring enforcement actions.

Sponsored by Rep. Arthur Broadhurst (D-Methuen), the bill would impose civil fines of $1,000 on any government body that violates the law and $500 on each government official who violates the law. Officials who “knowingly and intentionally” violate the law would be guilty of a criminal misdemeanor punishable by a fine of up to $1,000 for a first offense and up to $2,500 for subsequent offenses.

If enacted, the bill would also make government entities liable for the attorneys’ fees and court costs of individuals who sue to enforce the open meeting laws. Plaintiffs would be entitled to recover their costs and attorneys’ fees even if the entity corrects its violation after the lawsuit is filed, if the plaintiff, before filing suit, had requested in writing that the meeting be opened and the entity had refused.

Existing Massachusetts law allows a fine of up to $1,000 against a local government entity that violates the open meeting law, but not against state government entities. It has no civil or criminal penalties for individual state or local officials who violate the law. The law allows three or more registered voters to file lawsuits to enforce its provisions, but it does not allow them to recover their costs or attorneys’ fees.

In October, the MNPA concluded a 50-state survey of opening meeting law enforcement provisions, finding that Massachusetts was among the most lenient of any state in allowing government officials to violate the law without fear of consequences.

Among the findings of the MNPA’s survey:

  • Civil penalties. Forty states authorize some sort of penalty – either civil or criminal or both – for violations of their open meeting laws. Of these, 23 expressly authorize civil penalties. Although Massachusetts law authorizes penalties against local – but not state – government bodies, many states go further, imposing civil penalties directly against the government officials who violate the law.
  • Criminal sanctions. Twenty-one states make it a misdemeanor criminal offense for a public official to violate the open meetings law. These states provide fines for a first offense of as much as $1,500. Some states also include imprisonment as a potential sanction, in some cases for up to one year. States often increase the penalties for repeat offenders.
  • Voiding. The majority of states give their courts discretion to declare void any action taken in violation of the law. Some states take away the discretion, requiring that actions taken in violation of the law be considered null and void as a matter of law.
  • Private right of action. While most laws provide for enforcement by the state attorney general or local district attorney, many also give private individuals the right to sue to enforce the law. In Massachusetts, the law requires at least three registered voters to file such a suit. Other states require only one plaintiff. While some require that the plaintiff be a citizen, a taxpayer or someone aggrieved by the violation, most allow any person to file. Many states further require that courts hear and decide these cases within strict timetables.
  • Attorneys’ fees and costs. Without a provision for recovery of costs and attorneys’ fees, private individuals are less likely to seek enforcement of the law, even if the law gives them the right. Forty states that provide a private right of action also allow the prevailing plaintiff to recover costs, and 37 authorize attorneys’ fees. In most cases, these are to be paid by the government entity, but some states also require payment by officials who intentionally violate the law.

The bill has not yet been assigned a number. If you would like more information about the bill, please feel free to contact MNPA Executive Director Robert Ambrogi.

MNPA elects officers for 2005-2006

At its annual meeting Dec. 1, the Massachusetts Newspaper Publishers Association elected a new slate of officers. They are:

  • President: Kay Berenson, Publisher, Greenfield Recorder
  • 1st Vice President: James Plugh, Vice Chairman, Enterprise NewsMedia
  • 2nd Vice President: Larry McDermott, Publisher, Springfield Republican
  • Treasurer: Martin Langeveld, Publisher, North Adams Transcript
  • Secretary: Bruce Bennett, Publisher, Worcester Telegram & Gazette

They begin their two-year terms Jan. 1.