£5.41m reg fine over energy traders' WhatsApps cautions attorneys also on retention, spoliation, FOI

Electrical pylons on the Leeds-Liverpool Canal, England.
Mr T via Geograph CC BY-SA 2.0

The British gas and electric regulatory authority (Ofgem) fined investment bank Morgan Stanley £5.41m in late August for failure to record and retain traders' messages on WhatsApp.

News of the fine has shaken up the British compliance sector. The case should grab the attention of compliance attorneys, of course, but also corporate counsel and government attorneys throughout the Anglo-American legal system.

Wholesale energy traders discussed market transactions on WhatsApp on their personal devices. Rules on market manipulation and insider trading require that communications "relevant" to trading be documented and retained for Ofgem review; the messages were not.

The enforcement action therefore represents a wake-up call, but not a new standard. The case probably resonated for two reasons. First, employee use of personal devices for communication is increasingly common, if not expected, and it's difficult to police. Second, WhatsApp is known for its end-to-end encryption, a feature that makes it appealing to users, but incompatible with regulatory transparency.

I'm not a fin reg wonk, but it was those characteristics of the case that caught my attention. The enforcement action should remind corporate counsel that record retention requirements cut across devices and applications and can even follow employees home. Moreover, when records might be perceived reasonably to have potential relevance in future litigation, the cost of non-retention in spoliation can be steep.

Similarly, the enforcement action should remind government authorities that neither non-public location nor software-driven encryption countermands record retention and freedom-of-information laws. Transparency law was once vexed by problems such as proprietary access and private location; it is no longer. Just ask Hillary Clinton about her State Department emails or Donald Trump about his bathtub war plans.

The enforcement action is Ofgem, Penalty Notice: Finding That Morgan Stanley & Co. International PLC Has Breached Regulation 8 of the Electricity and Gas (Market Integrity and Transparency) (Enforcement etc.) Regulations 2013 (the REMIT Enforcement Regulations) (Aug. 23, 2023).

Ark. Gov swings again at state FOIA

Arkansas Governor Sarah Huckabee Sanders has proposed a bill to undercut the highly regarded transparency regime of that state's Freedom of Information Act.

I was at the Arkansas Capitol when a veritable mob of citizen opposition stopped an anti-transparency reform bill in the spring. Try, try again must be the Governor's m.o.

My friend and colleague Professor Robert Steinbuch testified effectively against the spring reform bill. Here he is telling Conduit News Arkansas why the newest incarnation is no good either.

UPDATE, Sept. 16. My understanding is that the bill was gutted this week. A substantially narrowed enacted version applies only to secret information about the governor's security detail. The matter was discussed on Arkansas Week.

NYPD seizes adorable dog, person too, in retaliation for video-recording in public, attorney-plaintiff alleges

A New York legal aid attorney was arrested, along with her dog, when she started video-recording police, and then she sued for civil rights violation.

Harvey (Compl. ¶ 36)

The NYPD messed with the wrong person. As the complaint tells it, Molly Griffard, an attorney with the Cop Accountability Project of the Legal Aid Society (Equal Justice Works), was walking her dog, Harvey, in the Bedford-Stuyvesant neighborhood of Brooklyn when "she saw police officers remove a young man from a bodega, and drag him around the corner where they lined him up with other young men against a wall."

Griffard began video-recording with her phone. After she crossed the street at an officer's instruction, she started writing down NYPD car plate numbers. An officer refused to give her his business card upon her request, the complaint alleges. Instead, the officer handcuffed Griffard and arrested her, taking her and Harvey into police custody. She was held at the 79th precinct for eight hours, while Harvey, a nine-year-old Yorkie, was held in the kennel.

Admittedly, what caught my attention in the case was not so much the facts, head-shaking inducing as they are, but the story of Harvey. Journalist Frank G. Runyeon, reporting for Law360, and NBC News 4 New York, also were enchanted.

Griffard and her attorney, David B. Rankin, of Beldock Levine & Hoffman LLP, must have been conscious of Harvey's intoxicating adorableness, too, because they included gratuitous glamor shots in the complaint—as I've reproduced here. 

Harvey (Compl. ¶ 20)

At its fringe, the case might be said to implicate animal rights, or at least the rights of owners of domesticated animals. Courts in the United States and elsewhere in the world are coming around to the idea that domesticated animals such as cats and dogs have a value exceeding their market worth as personal property, especially in the area of tort damages when the animals come to harm.

Griffard make no such claim, though, rather using Harvey as evidence to demonstrate her emotional distress at being separated from him and being given no information about his whereabouts while they were held—and, between the lines, to tug at the heartstrings and demonstrate the utter absurdity of her arrest and detainment.

One paragraph of the complaint does allege that seven-pound "Harvey was traumatized by the incident and now takes medication to treat his anxiety disorder." And the count of unreasonable seizure points out that "Harvey missed his dinner."

The case is Griffard v. City of New York, No. 512993/2023 (Sup. Ct. Kings County filed May 2, 2023).

FOI seminar shines light on transparency research

In fall 2022, students in my freedom-of-information (FOI) law seminar produced another range of compelling research papers in which they inquired into hot issues in the law of access to government.

It's been my privilege to teach a law school seminar in FOI since 2004. For other teachers who might like to include FOI in the higher ed curriculum, my 2012 casebook and companion teaching notes are now available in full on my SSRN page. Please contact me if my contemporary syllabus or other materials can be of help. I teach the law of access broadly, from state law to federal, and in all branches of government. Students moreover are encouraged to pursue research projects in any vein of transparency and accountability, including access to the private sector, which has been a focus in my research, too.

In fall 2022, my students had the fabulous opportunity to participate contemporaneously in the online National FOI Summit of the National Freedom of Information Coalition (NFOIC).  I'm grateful to NFOIC President David Cuillier and Summit Organizer Erika Benton for making our participation possible.

My fall class was joined by a number of guest speakers who vastly enhanced students' exposure to FOI law, research, and practice. I am especially grateful to Professor Alasdair Roberts, UMass Amherst, who joined us live to talk about all things FOI, from his classic book Blacked Out (Cambridge 2012) to the implications for transparency and accountability of the research in his latest book, Superstates (Wiley 2022).

I thank Professor Robert Steinbuch, Arkansas Little Rock, who joined us to discuss his tireless work as an advocate in the legislature for transparency. He now writes powerfully about transparency and accountability as a regular columnist for The Arkansas Democrat-Gazette, and he is author of the treatise, The Arkansas Freedom of Information Act (LexisNexis 8th ed. 2022). I thank Professor Margaret Kwoka, Ohio State, who took time away from her ongoing FOI research in Mexico to join us to talk about that work and her recent book, Saving the Freedom of Information Act (Cambridge 2021).

I also thank attorney Alyssa Petroff and current law student Megan Winkeler, who joined us via Zoom to talk about their FOI research.  An alumna of my FOI seminar (as well as Comparative Law) and now a judicial law clerk for the Maine Supreme Court, Petroff discussed her recent article in The Journal of Civic Information on access to information about private prisons in Arizona.  An alumna of my 1L Torts classes, Winkeler has four years' experience in negotiation and mediation training and currently is researching negotiated rule-making in administrative law.

Here are the students' ambitious projects.

Madison Boudreau, The Benefits and Drawbacks of Reform Targeting Police Misconduct. The movement to increase public access to police misconduct and disciplinary records has proven to be a beneficial and necessary step toward heightened transparency and accountability of police departments and officers. However, states that have taken strides to open up access to these records continue to grapple with the ongoing barriers to public access despite their efforts. States seeking to implement similar changes to their open records laws will benefit by remaining aware of potential drawbacks to access despite reform. In the absence of impactful reform that effectively mandates the disclosure of these records, police departments have shown to prefer to remain under a cover of darkness, their internal personnel procedures left unchecked. As a result, the cycle of police secrecy is bound to viciously repeat itself.

Aaron Druyvestein, The Rise of Vexatious Requester Laws: Useful Regulation or Evasive Government Practice? The concept of freedom of information allows anyone to request any agency record for any reason, a model that has been replicated around the world and celebrated as a necessity for promoting democracy. The underlying goals of FOI to promote accountability are contingent on the government providing a strong and efficient FOI system. However, with the dramatic increase in FOI requests in the country, brought about in large part by better utilization of technology in FOI processes, there has been an increase in the burden on administrative agencies as a result of excessive, repetitive, or vindictive FOIA requests. Since 2010, governments' responses to these burdensome requests have resulted in the creation of so-called vexatious requester laws, which are intended to mitigate the effect of these requests on agencies.

Critics of vexatious requester laws argue that the laws are nothing more than a feeble attempt by the government to undermine otherwise valid records requests under the guise of improving government efficiency and reducing requester harassment. Concerns have been expressed that the laws' reliance on ambiguous terminology such as "vexatiousness" will give agencies discretion to deny requests based on subjective and unverifiable agency determinations of the requester's intent or motives for requesting. This paper analyzes the rise and application of vexatious requester laws as seen in the three states—Illinois, Connecticut, and Kentucky—that have passed statutory provisions permitting administrative agencies to deny requests to vexatious requesters. In addition, this paper investigates the policy implications of such laws on the broader FOIA system.

Alise Greco, Read It Before You Eat It: An Explicatory Review of the 2016 Nutrition Facts Label and Balancing FDA Transparency with Consumer Comprehension and the Food Industry. As the nation recovers from the COVID-19 pandemic, it is difficult to ignore how drastically the American lifestyle has changed, especially with regard to diet and exercise. The Nutrition Facts Label (NFL), largely meant to influence and assist consumer decision-making for food and beverages, was last updated by the U.S. Food and Drug Administration (FDA) in 2016. This paper explains the 2016 NFL regulation in greater detail in light of a current need by many Americans to make informed, healthier choices based on science rather than social media or misleading, corporate-designed packaging. The FDA is put under the microscope and evaluated on its ability to balance the needs of consumers to be provided transparent, useful information and the demands from industry to make a profit.

Nicholas Hansen, Only Those Who Count The Vote Matter: A Comparative Examination of Arizona and Federal Transparency Regulations Pertaining to Election Data and Procedure and Their Impact on Citizen Confidence in Democracy. This analysis details the protections afforded under the state of Arizona’s election data exemptions under both the Arizona Open Meetings Act and the Arizona Open Records Act, and provides comparisons to the protections afforded under similar exemptions provided at the federal level. Characterizations of the election data and procedural protections for both levels of government are offered, and examinations of what information is permitted for provision under FOIA requests substantiate these characterizations. This analysis proceeds with an understanding that examinations must be confined to information that is both the subject of and relevant to either historical or ongoing FOIA requests, rather than the information made available to the public through the procedures associated with courtroom disclosures. 

This author posits that Arizona’s trend toward enforcing relative transparency when courts are compelled to examine the efficacy and validity of local election procedures might serve as a model for states whose courts are less inclined toward making such information available to the public at large. Recent lawsuits, including those associated with the largely settled controversies alleged pertaining to the 2020 Presidential election, and those suits pertaining to the use of Dominion Voting System’s voting machines substantiate this advocacy.

This analysis concludes with a determination as to whether or not Arizona’s FOIA exemptions as they pertain to election data and procedural information inspire greater public confidence than those utilized at the federal level. Also offered are policy recommendations as to how the Arizona judiciary might be able to better handle future election data and procedural controversies by utilizing the already extant tools within the FOIA rules, as well as policy recommendations for legislative reform in other states and the federal level, should local legislators and Congress see fit to implement a more transparent, more accessible system of legal procedures to deal with future election controversies.

Mitchell Johnson, Transparency and Tragedy: How the Texas Public Information Act is Being Weaponized After Uvalde, Yet Can Be Used for Good. This comment examines the Texas "law enforcement exception" under the Texas Public Information Act (PIA) regarding the mandamus lawsuit that several media outlets filed to obtain records from the Department of Public Safety (DPS) after the Robb Elementary shooting on May 24, 2022. The paper focused on the DPS, and not on another law enforcement agency at the scene of the shooting on May 24, because of the actions of Colonel Steven McCraw. Colonel McCraw, the highest ranking official in the DPS, has provided inconsistent accounts to the public of what occurred on May 24. This comment also examines the specific exceptions that the DPS claims. The DPS claims that the records that are sought for disclosure are either (1) records relating to an active investigation, or (2) records that relate to the purposes of law enforcement. The DPS’s current utilization of these exceptions is not grounded in law. No criminal investigation is taking place because the shooter is deceased. Furthermore, while Colonel McCraw has stated that his agency is reviewing his troopers’ and rangers’ actions to determine whether there should be a referral to prosecutors, criminal charges might be futile because of governmental immunity. Also, many of the records requested pertain to "basic information" of a crime that must be disclosed under the PIA. Last, the comment proposes that the PIA should be amended to incorporate case law and create a "criminality showing" if a law enforcement agency wishes to withhold documents under an active investigation exception.

Ashley Martinez-Sanchez, The New Jersey Open Public Records Act and the Public Interest in a Narrow Statutory Interpretation of the "Criminal Investigatory" Exemption. The New Jersey Open Public Records Act (OPRA) expresses a strong public policy in favor of open and transparent government. OPRA champions the idea of a citizen's right of access to government records to ensure an informed public. However, transparency is not absolute. The OPRA permits secrecy for ongoing law enforcement investigations.  Courts should narrowly read the "criminal investigatory" exemption. This paper analyzes the evolution of the exemption over the years. It further examines what the future looks like for it in the legislative and judicial context.  I reference New Jersey case law and recent events in the state to contextualize the importance of narrowly reading the exemption. Inversely, the paper suggests that a narrow interpretation of the exemption not only would impede transparency efforts, but would raise civil rights concerns, particularly for marginalized and vulnerable communities in New Jersey. 

Marikate Reese, Police Accountability: Does it Really Exist? This paper demonstrates the power of police unions, and their contracts, in limiting accountability, transparency, and access.  The contracts are the catalyst to shielding officers from disciplinary actions, limiting civilian oversight, and restricting access to misconduct records. While states, such as New York, have become more transparent with their records, the unions still dictate a large part of police procedure.  This procedure includes, but is not limited to, delay of officer interrogations, obstructing investigations of misconduct, and destroying disciplinary records.  The procedures are safeguards put in place by collective bargaining practices, law enforcement bills of rights, and civil labor law protections.  The overall purpose of these safeguards is to establish rights, protections, and provisions for law enforcement officers including the arbitration process, training standards, and process of investigation. This paper provides a brief coverage of the protections afforded by collective bargaining, police bills of rights, and civil labor laws that stand in the way of the public transparency barriers and racial injustice.  Furthermore, this paper addresses how these procedural protections limit accountability while taking a look at the existing laws among various states.  This paper suggests several ways states have made strides for accountability and what limitations might arise as a result.

James Stark, What's the Deal with Doxing? Doxing is an entropic issue plaguing today’s society. Defining what it means to be “doxed” has been a problem that’s compounded by the fact that not all forms of doxing are equal. Some play a useful role in public discourse, while other forms of doxing enable harassment of private citizens. The current anti-doxing laws can be summed up in three categories. First are the “incidentals,” which tend be older laws that just incidentally happen to address doxing in some way due to the language used. The second category is “Daniel’s Law,” which is a law that has picked up traction for trying to protect public officials from doxing and its harms. Lastly are the “general” statutes, which were crafted to specifically fight doxing in general and protect as many people as possible from doxing. In order to properly combat doxing, legislatures need to agree that doxing is the unwanted release of personal or identifying information about an individual as a form of punishment or revenge, and that it can affect anyone, in government or not. The legislatures must focus on creating “general” statutes, and tailor the laws to protect the individuals, while allowing discourse around public officials. A poorly written anti-doxing law will result in either censorship or inadequate protection of individual Americans.

Marco Verch Professional Photographer via Flickr CC BY 2.0

Chad Tworek, Public But Private Athletic Departments. This paper address the Florida state policy that allows public universities to designate their athletic departments as private, thus evading the records requests for which compliance is required for any other public agency. In Florida, there are athletic departments at public universities that are private. While they are not funded by the university, they still act as an agent of the university and are afforded the same protections as public universities. If anyone is to sue these departments and seek to claim damages, there is a statutory cap on damages, $200,000. The cap pertains because courts find them to be mere components of the public entities they serve. Yet protection from public records requests allows these departments to accumulate money in secret and to spend without accountability. Such organization of athletic departments is moreover occurring elsewhere in the United States. The impact is to keep the public in the dark about how these arms of government do business.

Judge chides attorney for not wearing coat

An Arkansas Supreme Court justice earlier this month called out a professor-attorney for not wearing a coat in a Zoom argument.

Associate Justice Courtney Rae Hudson took to task attorney and Professor Robert Steinbuch, Arkansas Little Rock, my colleague and past co-author on freedom-of-information works (book, essay), first, for not wearing a coat over his button-down shirt in the Zoom argument on February 2, and then for not having asked advance permission to use a demonstrative exhibit. She had the court and counsel wait painfully while Steinbuch and his attorney-client fetched coats.

Steinbuch probably should've worn a coat. He told Justice Hudson he had not because it interfered with his handling of the exhibit, a statutory text, within the small space of the camera view. Good excuse, bad excuse; either way, Justice Hudson's handling of the matter was condescending and, coming as it did after Steinbuch's argument, felt more personal than professional. My impression as a viewer was that Hudson was the one who came off looking worse for the exchange.

Being an aggressive advocate for transparency and accountability in Arkansas, Steinbuch has many allies in mass media, and they were not as gentlemanly about what went down as Steinbuch was. The aptly named Snarky Media Report made a YouTube video highlighting the exchange.  As Snarky told it, "Justice Hudson pulled out her Karen Card." Snarky also observed, with captured image in evidence, that "[s]everal times during the hearing Hudson appeared to be spitting into a cup."

More seriously, Snarky took the occasion to highlight past instances in which Hudson's ethics were called into question. Hudson (formerly Goodson), who was elected to the court in 2010, and her now ex-husband, a class action attorney, took two vacations abroad, valued together at $62,000, at the expense of Arkansas litigator W.H. Taylor (Legal Newsline). Hudson did report the gifts, and she said she would recuse from any case in which Taylor was involved.

Very well, but my suspicions of bias run a bit deeper. Hudson's vacation-mate ex, John Goodson, is chairman of the board of the University of Arkansas. (Correction, May 9, 2023: I'm told that Goodson ended his service on the board a year or so ago; I've not been able to ascertain the date.) One of Steinbuch's tireless transparency causes has been for Arkansas Freedom of Information Act access to the foundation funding of the university system in Arkansas, especially the flagship University of Arkansas, Fayetteville. Indeed, Steinbuch wrote just last week (and on January 29), in his weekly column for The Arkansas Democrat-Gazette, about that very issue in connection with secret spending at Arkansas State University. University System counsel have fought ferociously and successfully for decades to stop any lawsuit or legislative bill that would open foundation books to public scrutiny.

Goodson also has what the Democrat-Gazette characterized in 2019 as "deep political and legal connections around the state" with disgraced former state Senator Jeremy Hutchinson. Hutchinson is a nemesis of former Arkansas politician Dan Greenberg (a longtime friend of mine). After Greenberg lost the senate race to Hutchinson in 2010, Greenberg sued a local newspaper, alleging a deliberate campaign of misinformation. Steinbuch supported Greenberg in the suit. Though Greenberg was unable to demonstrate actual malice to the satisfaction of the courts, discovery in the suit revealed a problematically cozy relationship between the newspaper editor and Hutchinson.

The day after the oral argument in Steinbuch's case, Hutchinson was sentenced to 46 months in prison on federal charges of bribery and tax fraud—ironic, given that a false report of ethical misconduct was a rumor that Hutchinson had sewn about Greenberg in 2010. 

I don't know; maybe Justice Hudson just gets really hung up on men's attire.  She does hail from a conservative corner of Arkansas.

But a wise friend once told me, "Nothing in Arkansas happens for the reason you think it happens."

The case is Corbitt v. Pulaski County Jail, No. CV-22-204 (Ark. oral arg. Feb. 2, 2023).

Grand juror in Ga. Trump probe says little

Pres. Trump leaves Marietta, Georgia, in January 2021.

Trump White House Archives via Flickr (public domain)

The news is ablaze with the "odd 15-minute PR tour" of the grand jury foreperson in the Georgia Trump investigation, as former U.S. Attorney Harry Litman characterized her appearances to CNN.

Grand juries in the American justice system are secret for reasons that even access-advocate journalists and scholars such as myself tend grudgingly to respect. So I was shocked to see this 30-year-old grand juror, "who has described herself as between customer service jobs" (CNN), appearing above a "foreperson" banner, on my TV this morning.

I'm not naming her here, because I think she has had her 15 minutes. Literally. And she ought not be lauded for her TV blitz, which says more about the desperate breathlessness of the 24/7 news cycle than it does about a millennial's cravings for Likes or secrecy in the criminal justice system.

The legal reality of the foreperson's bean-spilling is not really as dramatic as splashing headlines suggest. In common law and in many states also by statute, grand jurors are bound to secrecy. Georgia grand jurors take an oath to that effect. But experts have pointed out that the grand jury investigating Trump's efforts to "find" votes in Georgia is a special, ad hoc, grand jury, so not necessarily operating under the usual statutes, and that Georgia law authorizes grand juries, though not individuals, to recommend publication of their findings.

More importantly, the judge in the instant matter apparently told grand jurors that they could speak publicly, subject to certain limits. The foreperson here said that she's steering within those limits, which appear to disallow disclosure of information about specific charge recommendations and the deliberations among jurors.

For all the media hoopla, the foreperson actually said very little, only that multiple indictments were recommended and that Trump and associates are targets of the investigation. That much already was publicly known. She refused to say whether the jury recommended charges against the former President himself, only teasing, "You’re not going to be shocked. It’s not rocket science" (CNBC), and there's "not going to be some giant plot twist" (N.Y. Times).

The common law presumption of grand jury secrecy means to protect the identity and reputation of unindicted persons and the integrity of ongoing investigations. Both of those aims further public policy, especially in the age of the internet that never forgets. There is some argument at the margins about when grand jury secrecy should yield to legitimate public interest. Accordingly, grand jury secrecy at common law is not an absolute, but a presumption, subject to rebuttal.

The case for rebuttal is strong when a President of the United States is the target of investigation. If grand jury secrecy is not undone in the moment, it's sure to be leveraged loose in the interest of history. Secrecy in the grand jury probe of the Clinton-Lewinsky affair in 1998 was unsettled by Clinton's own public pronouncements about his testimony. The "Starr Report" ultimately left little to speculation.

In cases of lesser magnitude, journalists and judges, naturally, do not always agree on the secrecy-public interest balance, and modern history is littered with contempt cases that have tested First Amendment bounds.

In a textbook case that arose in my home state of Rhode Island, WJAR reporter Jim Taricani refused to reveal the source of a surveillance tape leaked to him from the grand jury investigation of corrupt Providence Mayor Buddy Cianci. In 2004, Taricani, who died in 2019, was convicted of criminal contempt and served six months' home confinement. He became a symbol in the fight for legal recognition of the reporter's privilege, and, in his later years, he lectured widely in journalism schools. A First Amendment lecture series at the University of Rhode Island bears his name.

Taricani worked closely with the Reporters Committee for Freedom of the Press (RCFP). A superb RCFP series on "Secret Justice" in 2004 included a now dated but still highly informative brief on grand jury secrecy, and the RCFP has online a multi-jurisdictional survey on grand jury access.

Brookings has a report on the Fulton County, Georgia, investigation, last updated (2d ed.) November 2022.

Assange defense group plans Boston/online panel

In connection with Student Press Freedom Day, featuring nationwide virtual events, Boston Area Assange Defense will host a live and streaming program on Thursday, February 23, 6:30-8:30 p.m., on the prosecution (persecution?) of WikiLeaks information activist Julian Assange.

Accused of hypocrisy, the Biden Administration still seeks Assange's extradition from the UK to face charges of espionage in the United States. Assange presently is appealing approval by the British home secretary of the extradition request.

Having co-founded WikiLeaks in 2006, Assange long advocated for absolutism in the freedom of information. But when WikiLeaks received a trove of records from U.S. soldier Chelsea Manning, Assange did enlist the help of journalists to filter the material for public consumption in an effort to protect people, such as confidential informants whose lives would be at risk if they were named as collaborators with western forces.

Nevertheless, the subsequent publication of records in 2010 and 2011 outraged the West.  The records included secret military logs and cables about U.S. involvement in Iraq and, as Al Jazeera described, "previously unreported details about civilian deaths, friendly-fire casualties, U.S. air raids, al-Qaeda’s role in [Afghanistan], and nations providing support to Afghan leaders and the Taliban." Especially damaging to western interests was a video of arguably reckless U.S. helicopter fire on Iraqis, killing two Reuters journalists.

Manning was court-martialed for the leaks. President Obama commuted her sentence in 2017.

Thursday's program is titled, "The Future of Gen Z Journalism Depends on Julian Assange's Freedom." From Boston Area Assange Defense, here is the description.

Boston Area Assange Defense invites you to attend a panel discussion on how the U.S. prosecution of Julian Assange impacts the future of journalism. This event is part of the Student Press Freedom Day 2023 initiative: "Bold Journalism/Brave Advocacy." 

The reality is that "Bold Journalism" has landed Julian Assange in a supermax prison for publishing the most important journalistic work of this century. Our First Amendment rights are threatened by this unconstitutional prosecution of a journalist and gives the US government global jurisdiction over journalists who publish that which embarrasses the US or exposes its crimes.

Prestigious international lawyer Prof. Nils Melzer (appointed in 2016 as UN Special Torture Rapporteur) authored, The Trial of Julian Assange, A Story of Persecution. The book is a firsthand account of having examined Assange at Belmarsh prison and having communicated with four "democratic" states about his diagnosis of Assange exhibiting signs of persecution. He wrote, "I write this book not as a lawyer for Julian Assange but as an advocate for humanity, truth, and the rule of law." "At stake is nothing less than the future of democracy. I do not intend to leave to our children a world where governments can disregard the rule of law with impunity, and where telling the truth has become a crime." Melzer stated, "If the main media organizations joined forces, I believe that this case would be over in ten days."

Boston Area Assange Defense platforms this experienced panel of journalists for a lively conversation about the Assange prosecution, its threat to journalism and the rule of law. Also, a short video clip narrated by Julian Assange's wife will be streamed for informational and discussion purposes.

Students and citizens alike are entitled to a free press so that we can make informed decisions.

A free press is the cornerstone of our democracy.

We must fight against censorship and the criminalization of journalism.

We must show "Brave Advocacy" to end the prosecution of Julian Assange!

Please join us February 23rd for this important "Bold Journalism/Brave Advocacy" event.

Students are invited so kindly share this event with your students!

Online Zoom link. 

Community Church of Boston's YouTube. 

People will also gather at the Community Church of Boston, 565 Boylston St., near Copley Square.

An Assange information table will be set up with literature and petition to MA senators. Boston Area Assange Defense will be present to answer questions....

Guest speakers:

• Jeremy Kuzmarov, Author and Educator, Managing Editor, Covert Action Magazine 
• Esther Iverem, Journalist, Producer, Radio Host, "On the Ground: Voices of Resistance from the Nation's Capital," nationally syndicated on the Pacifica Network
• Sam Carliner, Journalist; Sam's Jan. 2021 article covering the Dept of Justice DC rally during Assange's extradition hearing
• Tarang Saluja, Student, Activist, Journalist

Sunshine filters in to Mass. jail with gloomy history

Bristol County, Mass., Sheriff Paul Heroux is seeking to close a jail with a gloomy history, and last week he gave journalists a look inside.

Built in 1888, the Ash Street Jail in New Bedford, Mass., housed Lizzie Borden during the 1893 trial in which she was acquitted of killing her father and stepmother. The "Lizzie Borden House" is a tourist attraction in nearby Fall River, Mass., today. Undoubtedly the site of executions in Bristol County, Ash Street is often said to be the site of the last public hanging in Massachusetts, in 1898. Records conflict (compare O'Neil with O'Neill, and see Barnes), but if it's not, it's close enough. The commonwealth changed its method of execution to the electric chair in 1900.

Purchase St., New Bedford, Mass., 1888.
Whaling Museum photo via New Bedford Guide.

One of the oldest jails in continuous operation in the United States, Ash Street gained new notoriety beginning in the late 20th century, especially after 1997 during the tenure of Sheriff Thomas Hodgson. In 25 years of service as sheriff, after prior service in local politics, Hodgson earned national press for hardline measures such as the removal of televisions and gym equipment from the jail, the imposition of room-and-board charges for detainees, the institution of chain gangs, and an offer of detainee labor to the Trump Administration to help build the border wall.

Meanwhile, Hodgson was unapologetic for conditions within the jail. Former detainees complained of uncontrolled mold, uncontained sewage, and intolerable cold and heat (WBUR). The complaints have been controverted. A former jail official lauded staff and facility in a 2022 letter to the New Bedford Guide, for example, and a news reporter, upon a tour of the facility in 2016, wrote favorably of a modernized interior.

When Heroux toppled Hodgson in the 2022 election, closing the Ash Street Jail was part of his platform.

President Trump and Sheriff Hodgson at the White House, 2019.
Trump White House Archives via Flickr (public domain)

Former Sheriff Hodgson is reminiscent of an infamous character in the annals of freedom of information law, Sheriff Thomas Lafayette Houchins, Jr., of Alameda County, California. Houchins lent his name to Houchins v. KQED, Inc., a 1978 U.S. Supreme Court case regarded generally as standing for the proposition that the First Amendment does not articulate a right of access to public places, if not more broadly foreclosing use of the First Amendment as any kind of freedom of information act.

In my 2012 casebook, Law of Access to Government, I contextualized Houchins with some biographical information about the sheriff (relying on sources such as the East Bay Times).

Thomas Lafayette Houchins, Jr., was a leader in the sheriff 's department in the 1960s and earned a reputation for uncompromising law enforcement. A veteran law enforcement officer, Houchins had joined the department in 1946 after serving in World War II as a Marine Corps fighter pilot. He was elected sheriff in 1975 and retired in 1979. In 1969, Houchins commanded a force of sixty or more deputies in crowd control at what became an infamously tragic concert headlined by the Rolling Stones. He recounted thirty years later: "Some guy jumped off an overpass because somebody told him he could fly. They lied. Another jumped into the [Delta Mendota Canal] because they told him he could swim. They lied to him, too.... I think we had five deaths and five births, so we came out even." Houchins died at his California home in 2005.

The Houchins case centered on news media investigation of the Santa Rita jail. Reporters wanted to tour "Little Greystone," a part of the jail in which "shocking and debasing conditions" were alleged to have caused inmate illnesses and deaths.

Houchins is one of a family of First Amendment access cases in which the Burger Court put the brakes on the liberal interpretations of the First Amendment that characterized the civil rights era. However, to the dismay of President Richard Nixon, who appointed him, Chief Justice Warren Burger was only marginally effective in rallying the Court to reverse the civil rights direction of the predecessor Earl Warren Court.

Houchins reflects that equivocation. Though Houchins's bar review flash card might read simply "no 1A access to public places," the decision came from a fractured Court of only seven justices and an opinion of only three. Harry Blackmun and Thurgood Marshall did not participate, the former having had recent surgery and the latter recusing. Burger was joined by only two others, including his successor as Chief Justice, William Rehnquist, in the opinion of the Court. They formed a majority of four with the addition of Justice Potter Stewart. (Read more about the fracas behind the scenes from Matthew Schafer.)

Concurring, Stewart joined Burger's conclusion on the facts of the case; he had been the author of two prior Court decisions, in 1974, rejecting press access to prisons or prisoners. Yet in his opinion in Houchins, he speculated that media might articulate a First Amendment claim on better facts. With three dissenters arguing at least as much, thus outnumbering the Burger contingent, Houchins arguably left the jailhouse gate open to a First Amendment theory, if you'll forgive the metaphor. Media law aficionados will recognize a pattern akin to Branzburg v. Hayes (1972), in which similar equivocation on the Court, aided later by clever advocacy from media lawyers, left the problem of constitutional reporter's privilege in disarray.

Much of the dispute in Houchins can be characterized as a frame-of-reference problem. In its broadest frame, Houchins is about public access to places to hold public officials accountable. That seems reasonable. But when I teach Houchins, students are quick to find the media position untenable, reading the case more narrowly as about reporters demanding access to any part of the prison, perhaps even with minimal advance notice.

That dichotomy in framing plays out in the public protests and media frustration over access to the Ash Street Jail in recent decades. There were tours; the writer who toured Ash Street in 2016, cited above, was then a reporter for public radio WBUR. Just like in Houchins, protestors and former detainees of the facility complained that public tours were limited and staged, showing reporters only what officials wanted them to see. Officials said that wider public access would jeopardize the security of the facility and the people inside, both detainees and workers.

The theoretical solution that emerged from Houchins, such as the case held, is that supervision of "non-public public places" should be accomplished not through the free press of the First Amendment, but through political accountability at the ballot box. To some degree, that's what happened when Heroux became sheriff in 2022. At the same time, prison conditions raise a peculiar problem in majoritarianism, familiar in criminal justice and civil rights contexts, and resonant in debate today over policing: The political system is not a reliable way to protect the rights of jailed persons, a minority class widely regarded with little sympathy.

On balance, I don't know whether the truth of the Ash Street Jail is closer to the horrifying complaints of former detainees or to the confident assurances of public officials. Whether constitutionally or statutorily, sunshine must be allowed to penetrate prison walls.

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SCOTUS lets stand First Amendment protection of citizen newsgathering via secret recording of police

Pixabay by Bruce Emmerling

Denying review in November 2021, the U.S. Supreme Court let stand court decisions declaring the Massachusetts wiretap statute unconstitutional as applied to recording police in public places.

I wrote about the original U.S. District Court decision here at The Savory Tort in 2019.  As I commented then, the decision and others like it in the federal courts have broader implications for the First Amendment and the right of access to information.  Historically, American courts have been reluctant to locate access rights in the negative command that Congress make no law abridging the freedom of speech.

But developments in media technology have dimmed the once bright line between information acquisition and expression.  In an age in which one can retweet scarce moments after reading a tweet, government regulation of receipt seems to impinge intolerably on transmission.  Layer on as well a realpolitik of demand for accountability in law enforcement, and the mechanical application of a wiretap prohibition to a smartphone recording of police conduct, or misconduct, becomes indefensible.

Accordingly, civil liberties advocates applauded the district court holding "that secret audio recording of government officials, including law enforcement officials, performing their duties in public is protected by the First Amendment, subject only to reasonable time, place, and manner restrictions."  Bipartisan claimants in the case included Boston-based civil rights activists K. Eric Martin and René Perez, supported by the ACLU of Massachusetts, and conservative activist James O'Keefe and his Project Veritas Action Fund.

In December 2020, the First Circuit mostly affirmed.  U.S. Circuit Judge David J. Barron observed for a unanimous panel that also comprised retired Supreme Court Justice David Souter, sitting by designation, and Senior Judge and Rhode Islander Bruce M. Selya, "Massachusetts makes it as much a crime for a civic-minded observer to use a smartphone to record from a safe distance what is said during a police officer's mistreatment of a civilian in a city park as it is for a revenge-seeker to hide a tape recorder under the table at a private home to capture a conversation with an ex-spouse."

The Massachusetts wiretap law, which is restrictive, requiring all-party consent, but not unique in the states, thus offended the First Amendment insofar as it "prohibit[ed] the secret, non-consensual audio recording of police officers discharging their official duties in public spaces."  In the vein of the changing media landscape and advent of citizen journalism, the First Circuit opined: "In sum, a citizen's audio recording of on-duty police officers' treatment of civilians in public spaces while carrying out their official duties, even when conducted without an officer's knowledge, can constitute newsgathering every bit as much as a credentialed reporter's after-the-fact efforts to ascertain what had transpired."

However, ruling that Project Veritas's purported fear of prospective prosecution failed to prevent a controversy ripe for adjudication, the First Circuit vacated the judgment of the district court insofar as it reached the "secret, non-consensual audio recording of government officials discharging their duties in public" (my emphasis).  That's not to say the principle of the ruling cannot extend beyond police, to other public officials, when there is legitimate public interest in accountability.  Precedent suggests such extension.  But the court was skeptical of the potential reach of an unqualified ruling: "[I]f we ... construe the term 'government officials' as broadly as 'officials and civil servants,' that category covers everyone from an elected official to a public school teacher to a city park maintenance worker."

The First Circuit ruling thus nudges the First Amendment forward in the access arena.  Meanwhile, First Amendment problems lurk ever more menacingly in countervailing privacy law.

At the end of November 2021, Twitter announced a new privacy policy allowing any individual pictured in a tweet to demand takedown, regardless of whether the tweet contains information held private.  There are public-figure and public-interest exceptions.  But generally, images of ordinary persons in public places are imbued with a right of privacy akin to that which animates the European (and increasingly rest-of-the-world) right of personal data protection.

The balanced protection of personal privacy in public places is proving difficult to draw in European courts, which have generated rulings not always savory to the American palate.  My Google Nest Doorbell, for example, facing the public street in Rhode Island, would be problematic under European privacy law.  A private company, Twitter does not have to contend with the First Amendment.  But if the same privacy value and takedown policy were embodied in law, well, as they say in New England, a stahm is a-brewin'.

Both district and circuit courts rejected Project Veritas's facial challenge to the wiretap law.  Project Veritas filed a petition for writ of certiorari in May 2021, and the U.S. Supreme Court denied review in Project Veritas Action Fund v. Rollins, No. 20-1598, on November 22, 2021.  Hat tip to Brian Dowling at Law360.  Cf. Family in fatal police shooting demands transparency, The Savory Tort, Jan. 19, 2022.

Family in fatal police shooting demands transparency

Fall River Police Department
Photo by Kenneth C. Zirkel (CC BY-SA 4.0)

At a rally in Fall River, Mass., on January 15, the family of Anthony Harden, who was killed by police in November, demanded transparency in the investigation into the shooting.

News reports state that Harden, 30, became involved in a physical altercation with two police officers trying to arrest him at his home.  Harden was confined to the home with a GPS bracelet while charges were pending in an assault case, WBZ reported in December.  According to police, Harden repeatedly stabbed at one of the officers with a metal object, possibly a steak knife, and the other officer shot and killed him.

Bristol County District Attorney (DA) Thomas M. Quinn III investigated and announced in December that police had complied with the department use-of-force policy, WBZ reported.  But the family has not yet seen the full record of the investigation, the Fall River Herald News reported after the "Justice for Anthony" rally on Saturday, and the family alleges inconsistencies between a private autopsy and the DA's conclusion.

In light of the police accountability movement that erupted in recent years in the United States, my Freedom of Information (FOI) Law seminar in the fall semester took up law enforcement transparency as a special topic.  Sifting the voluminous writing on police accountability in scholarly, NGO, and popular literature, I found, probably unsurprisingly, that lack of transparency is often a volatile fuel of misunderstanding and vehement distrust between people and police in these matters.  Worse, it doesn't always have to be.

At risk of generalizing to the detriment of the many, many police officers and departments that uphold the law with integrity, there remains the conventional wisdom that police are notorious for resistance to transparency.  My own youthful interest in FOI law was spurred by, and, in fact, a factor in my decision to go to law school in the 1990s was, frustration dealing with the Rockbridge County Sheriff's Office when I was a student journalist in Virginia.  

FOI "audits," occasionally carried out by media and NGOs to test state open records compliance, invariably test police, because a characteristic reluctance to comply with the law, ironically, juxtaposes so sharply with the urgent life and liberty interests of persons subject to police power.  The classic tension in this vein is nicely encapsulated by Amy Sherrill's report on police compliance for a 1999 Arkansas audit.  The piece might as well have been written yesterday; secrecy in policing is a persistent devil.

For my October class, besides some introductory material such as the law enforcement exemption in the federal FOI Act (FOIA) (subpart (b)(7)), after which the states have modeled many statutory open records exemptions, I assigned:

• State ex rel. Standifer v. City of Cleveland, 2021 Ohio 3100 (Ct. App. Sept. 3, 2021);
• Emanuel Powell, Unlawful Silence: St. Louis Families’ Fight for Records After the Killing of a Loved One by Police, 57 Am. Crim. L. Rev. 65 (2020); and
  
• Somebody: Police, The Intercept (Apr. 14, 2020) (podcast ep. 3).

There is so much to unpack on this topic that I had to be judicious.  The Standifer case, arising from an investigation into police violence in Connecticut, frames the subject with First Amendment access implications and the balance between police transparency and the rights of persons named in police records, including police officers themselves.

I can't say enough about the Powell article.  An attorney with ArchCity Defenders, Emanuel Powell related a personal and powerful narrative with a well informed and reasoned call for reform.

The entirety of The Intercept podcast, "Somebody" season, is worth the time.  For this class, I chose the "Police" episode, especially for its audio recordings of a mourning mother, Shapearl Wells, desperately seeking answers in the death of her son, and what she faces with police who are sometimes understanding but more often defensive, guarded, and harsh with her.  The audio medium demonstrates, in a way a cold transcript could not, the communicative disconnect between Wells and police, and the insult, however unintended, of unnecessary opacity upon an already tragic injury.  Somebody was a joint project of the Invisible Institute and comes with, especially useful for secondary school, a 10-unit teaching guide. 

There are some fascinating online clearinghouses on police data, such as NGO Mapping Police Violence and the Invisible Institute's Citizens Police Data Project, the latter focusing on Chicago, having begun as a collaboration with the University of Chicago.  The annual program of the National Freedom of Information Coalition (NFOIC) in fall 2021 featured informative sessions on police transparency reform and tracking police misconduct records (latter trailer only).  Tomorrow, I plan to attend virtually a plenary panel of the Communications Law Forum of the American Bar Association, "Racial Injustice Exposed on Camera: Police Transparency and Government Access in a Viral World."

I am open to persuasion on the basis of what I might not know about the investigation into Harden's death.  But on the face of it, I see no reason at this point for withholding investigative records, especially the autopsy.  Law enforcement authorities sometimes fear record release because it might compromise the public's position in seemingly inevitable litigation.  But discovery will bring the evidence to light anyway, and public entities shouldn't get to hold their cards tightly when accountability for lost life is at stake.

It's especially troubling that on the Bristol County DA website, there is, at the time of this writing, not a single mention of Anthony Harden.   The last two press releases from the office, before and after announcement of the conclusion in the Harden investigation, regard sentencing in other matters, touting the DA's success.  The 11-page report on the Harden matter, described by The Herald News, I cannot find online, not at the DA's site, nor from the State Police Detective Unit that conducted the investigation.

So one might understand how the Harden family, and families similarly situation around the country, might worry that the political heads of law enforcement are concerned more with reelection than with justice.  Transparency would not necessarily solve all ills, but it might diffuse tension and enhance public confidence by some measure.

State constitutional law offers untapped potential to bolster advocacy in freedom of information

The Vermont Supreme Court relied on the 1777 Vermont
Constitution, as amended in 1786, to support access to
information under the public records act (PRA, or FOIA)
in 2021.

In the summer, two third-year law students published in the Journal of Civic Information a superb investigation highlighting the untapped potential of state constitutional law as a tool in access advocacy in the United States.

Among the many ways in which the U.S. Constitution shows its age is its lack of a right of access to information (ATI). ATI has become a recognized human rights norm in modern constitutions and regional instruments around the world, while the concept in U.S. federal law remains relegated to statute: the Freedom of Information Act (FOIA), which once was landmark yet today suffers from significant dysfunction. For my own part, I have examined the significance of  this divergence relative to the problem of privatization in the U.S. FOIA and the South African Promotion of Access to Public Information Act (PAIA).  I spoke last month to the U.S. FOIA Advisory Committee re same (HT).

The constitutional lag is not characteristic of all U.S. states.  By the count of University of Florida Levin College of Law students Jessica Terkovich and Aryeh Frank, ATI is recognized in the constitutions of seven states: California, Florida, Illinois, Louisiana, Montana, New Hampshire, and North Dakota.  In their article, Terkovich and Frank examined case law in these states to see how the constitutional provisions are implicated.

The researchers found that the constitutional provisions were not realizing outcomes in ATI litigation in these states all that different from outcomes that might be reached under the states' statutory expressions of ATI.  Rather than concluding that the constitutional provisions are inconsequential, however, Terkovich and Frank concluded from the evidence that constitutional ATI is under-used as a source of law to bolster access advocacy.

Their reasoning resonates with me.  When I was a newly hatched academic in the 1990s, I was enchanted by an examination copy of a casebook on state constitutional law.  (Lexis and West have current offerings.)  I was never able to swing the course offering, but the subject informed my teaching and research.  Accordingly, I've always encouraged students to consider state constitutional approaches to legal problems.

Often, state high courts recite by rote the default position that they interpret state constitutional rights as merely co-extensive with federal rights; the pairings are construed in pari materia.  The proposition that the free-press-and-speech provision of Article XVI of the Massachusetts Declaration of Rights is co-extensive with the First Amendment to the U.S. Constitution was reiterated recently in the scrap over a Boston flagpole now bound for the U.S. Supreme Court.

Courts might reflexively choose the easier path, shrugging off the burden of state constitutional interpretation.  But they can readily embrace state constitutionalism when it suits their needs.  The Supreme Court of Arkansas long construed the 1874 state constitutional guarantee against unreasonable search and seizure in pari materia with the federal Fourth Amendment.  Until they didn't.  When the U.S. Supreme Court bounced back a state high court disposition as erroneous under the Fourth Amendment, the nonetheless jurisprudentially conservative Arkansas court, in 2002, suddenly discovered distinct meaning in the state constitution to support its earlier conclusion in the defendant's favor.

That result could not have happened if criminal defense lawyer John Wesley Hall had not made the argument.  And that possibility, that the state constitution could mark the difference between liberty and imprisonment, was exactly why Hall included the Hail Mary claim despite longstanding precedent on the in pari materia approach, he once told me.

The potential for potency in a state constitutional claim is all the greater when the right at issue is expressed in the state constitution, but not in the federal Constitution, as is the case for ATI.  And the potential is not limited to the seven states that Terkovich and Frank analyzed.  Just in September, the Vermont Supreme Court extended its ATI law, the Public Records Act (PRA), to shine sunlight on the records of a private contractor responsible for healthcare in state prisons.

Vermont is not on Terkovich and Frank's list of seven.  Nevertheless, in Human Rights Defense Center v. Correct Care Solutions LLC, the Vermont Supreme Court relied on exhortative language—previously held unenforceable by private cause of action—dating to 1786 in the state declaration of rights: "That all power being originally inherent in and co[n]sequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them."

The article is Jessica Terkovich and Aryeh Frank, Constitutionalizing Access: How Courts Weigh State Constitutional Claims in Open-Government Litigation, 3(1) J. Civic Info. 1 (2021).

Incarcerated persons have access to information in Massachusetts law, court confirms, but not in all states

Image by Ichigo121212 from Pixabay

A man imprisoned for murder has a right of access to public records no less than anyone else, the Massachusetts Appeals Court held in the summer.

Nine years ago, Adam Bradley was co-perpetrator of a home invasion in Billerica, Massachusetts, northwest of Boston, in which 22-year-old resident Quintin Koehler was shot and killed.  The crime was tied to the Bloods gang, according to The Boston Globe.  In 2017, at age 32, Bradley was convicted of first-degree murder and sentenced to a life term.

Lately, Bradley has used the Massachusetts Public Records Law (PRL, or FOIA) to investigate his conviction by requesting police records.  He alleged in a lawsuit that the State Police records access officer (RAO) failed to respond to multiple PRL requests.

In court, the RAO resisted production under the PRL on two grounds, (1) the ongoing investigation exemption of the PRL and (2) the parallel availability of records to Bradley in criminal discovery.

The Appeals Court soundly rejected both state arguments.  On the first ground, RAO overreached by declaring the entirety of the case file within the investigation exemption.  On the second ground, the PRL operates independently of parallel access in criminal process, the court held.  The RAO anyway owed Bradley a response asserting grounds for non-production.  The state public record supervisor twice ordered the RAO to respond.

The court holding accords with state freedom-of-information norms; the most noteworthy point of the case is that an appeal was required.  As in other states' FOIA exemptions for ongoing investigations, the Massachusetts PRL requires record-by-record review, redaction for partial production when possible, and, if necessary, in camera inspection by the trial court in a legal challenge.

The problem of parallel access is somewhat more vexing, though still should not have confounded the RAO.  Some states expressly exclude active litigants from FOIA uses that might subvert judicial procedure.  But such exclusions, which are far from universal, typically do not bar post-conviction access in criminal matters, even with ongoing appeals.  The RAO in the instant case relied on regulatory language that faintly suggested discovery exclusivity, and the court properly dispelled that theory.

Parallel access questions are thornier when there are state regulatory mechanisms in play that arguably supersede state FOIA as a matter of legislative intent, especially in the area of business regulation.  For example, a statutory framework for state contracting might regulate disclosure and non-disclosure of records maintained by the contractor or submitted to the state, arguably superseding FOIA access.  Even then, the rule of statutory construction that FOIA access is to be construed liberally and FOIA exemptions to be construed narrowly usually makes FOIA a trump card.  Bradley's case presented no such wrinkle.

The case is noteworthy also for a rule that is not at play.  Massachusetts is not one of the states that has limited or simply disallowed FOIA use by prisoners.

The Arkansas Department of Corrections (DOC) lobbied successfully for an amendment to the Arkansas FOIA in 2003 to exclude incarcerated felons from the state definition of "citizen."  Access advocates, including me, managed at that time to negotiate the exclusion down to only DOC records and pro se requests, allowing attorney-representatives to make requests.  Eight years later, the exemption was amended to eliminate the DOC limitation.

It was difficult to advocate for prisoner access.  Incarcerated felons are not a popular constituency and don't vote.  And to be fair to state officials, many dilatory and hardly comprehensible requests emanate from prisons and tie up public resources with no clear public benefit.  At the same time, of course, persons deprived of liberty are susceptible to human rights abuses for which accountability is notoriously elusive.  Michigan public radio in 2016 explored the problem of prisoner civil rights in the absence of access to information in that state's law.

The Massachusetts case is Bradley v. Records Access Officer, No. 20-P-419 (Mass. App. Ct. 2021).  Justice Gregory I. Massing authored the opinion for a unanimous panel also comprising Justices Henry and Ditkoff.  Before appointment to the bench in 2014, Justice Massing served as executive director of the Rappaport Center for Law and Public Service, and previously as general counsel for the state's Executive Office of Public Safety and Security.