Recurring Problems Limit Public Access Laws

By Jack Authelet

Public access laws in Massachusetts, in spite of our continuing problems, are the epitome of openness compared to most other states.

The premise of the laws in Massachusetts is that everything is open unless there is a specific restriction relative to disclosure or access. Therein lies the rub, for as long as people are required to interpret the statute they will err to the side of caution and the public will be wrongfully denied.

You can improve your success rate by knowing the law (as well as applicable case law decisions) and using that knowledge in a professional manner to properly challenge the denial while at the same time, hopefully, educating those responsible for the inappropriate response to the initial request. Some of the more frequent points of conflict and the appropriate remedies are: Discipline and Complaints. Can complaints filed against public employees or officials be heard behind closed doors? Yes, but only after the individual named in the complaint has been named in the complaint has been given written notice and informed of the right to request a public session. The complaint may be heard privately to protect the individual against public discussion of unfounded charges. Once that purpose evaporates, however, so does the reason for continued nondisclosure. This means that once the charges have been heard and a decision rendered (to dismiss the charged, discipline the individual or terminate employment, etc.) the issue becomes public and the minutes of the session must be release. The case law references to support this position are: Doherty v. School Committee of Boston. 386 Mass. 643 (1982) Foudy v. Amherst-Pelham Regional School Committee. 402 Mass. 179 (1988) Perryman v. School Committee of Boston. 17 Mass. App. Ct. 346 (1983) Lawful Protection of Privacy. An executive session may be held in consideration of an individual statutory right to privacy only where the public interest in open government is outweighed by an otherwise unwarranted, unreasonable, substantial and serious interference with the individual privacy. The individual privacy interest may outweigh the public interest concerning "intimate details" of a "highly personal nature." Foudy v. Amherst-Pelham Regional School Committee. 401 Mass. 179 (1988) Performance Evaluations. While the law (G.L. c39 s.23B) specifically allows executive sessions for the purpose of discussing a public employee's reputation, character, physical condition, or mental health, it specifically excludes use of a closed session to discuss that individual's professional competence. Consequently, the yearly evaluations of school superintendents, town administrators, etc. should be conducted in public. Home Addresses. Home addresses and attendance records of public employees are public documents. Pottle v. School Committee of Braintree. 395 Mass. 861, 482 N.E. 2nd 813 (1985) Brogan v. School Committee of Westport. 401 Mass. 306, 516 N.E. 2nd 159 (1987) Search Warrants. Is a search warrant a public document? Yes, once it has been served and the return filed with the court. Earlier disclosure would render the warrant moot, in that publication of the details would alert the person named as to what the police are looking for. Once it has been filed, however, it makes a good follow-up story as to the object of the search. Can I Obtain a Coroner's Report? The judge's report and transcript are available if the District Attorney has certified no prosecution is proposed or if the trial of the persons named in the report as responsible for the death is complete. Names of Juveniles. The names of juveniles are public if the individual is charged with a capital crime (murder, rape, sexual assault, etc.) The name is also available from the probation officer if the juvenile was 14 or older at the time a crime was committed and has been adjudicated delinquent on two prior occasions for acts for which he could have been imprisoned if 17 or older. It is now mandatory that juveniles charged with capital crimes be subjected to a transfer hearing to enable the judge to make a decision as to whether the individual should be tried as a juvenile or an adult. Transfer hearings are open and often include disclosures that will be prohibited from the actual trial. It is important to note that in a transfer hearing, the burden is on the defendant to prove he is amenable to rehabilitation rather than on the state to prove he is not. Sealed Court Documents. No court records may be sealed without prior public hearing. It is possible to leave a blanket request with the court that you want to be notified when any hearing on closure gas been scheduled. If a case was sealed without a public hearing, it can be opened on appeal.