Ag Gag Laws: A National Epidemic Threatening the First Amendment

By Bill Ketzer

Introduced in January 2013, House Bill 110 in New Hampshire sought to impose mandatory reporting requirements on any person witnessing or recording an act of animal cruelty committed against livestock. These efforts are commonly referred to as “Ag Gag” bills [1], which seek primarily to criminalize the act of documenting animal cruelty, environmental and other violations on farms. A nationwide epidemic, Ag-Gag legislation has been proposed in 16 states, including New Hampshire, since last year.

Criminalizing this investigative activity not only cripples the ability of investigators to successfully prosecute animal abuse – it is a serious affront to tenants of First Amendment jurisprudence protecting the Freedom of the Press. Fortunately, due to an outpouring of public opposition and the statewide efforts of animal protection, environmental, prosecutorial, civil liberties and other organizations, H.B. 110 was finally tabled two weeks ago. If passed, the measure would have required any person witnessing cruelty to livestock (including poultry) to report such cruelty to authorities within 48 hours, and also disclose whether they had recorded evidence of such acts at that time. Further, that person would have been required to maintain an unedited copy of any photographic or video evidence for 60 days.

As such, the bill would have essentially required witnesses to become an extension of law enforcement, and dissuaded the reporting individual from any further dissemination of photos and videos of alleged acts in their possession. Thus anyone in possession of such evidence failing to meet the 48-hour reporting deadline would face competing interests: expose the cruelty, while also exposing oneself to criminal liability for the reporting delay. Although H.B. 110 provided an affirmative defense against prosecution for an individual failing to report because he or she believed they were criminally liable for the conduct of the actor committing the cruelty, this “protection” was a thinly-veiled attempt to appease farm interests and clearly demonstrates that whistleblowers and undercover journalists were the targets of the legislation all along.

First Amendment jurisprudence has not established protection for newsgathering. As the Seventh Circuit held in Desnick v. American Broadcasting Cos., Inc., although newsgathering is generally not privileged against torts or crimes, if newsgathering is found to not violate any torts or crimes, then there is generally no legitimate way to prevent it from occurring. [2] Ag Gag laws like H.B. 110 effectively attempt to stamp out newsgathering by whistleblowers and investigative journalism endeavors. Currently, forty states have shield laws that protect journalists from being forced to reveal their sources. Mandatory reporting requirements would eviscerate these protections and seriously decrease the likelihood of any witnesses to cruelty coming forward for exposure to criminal liability. Without these guarantees of anonymity, cruelty and substandard farm practices would be allowed – if existing – to persist unchecked. Indeed, all “Ag Gag” bills are detrimental to the important role whistleblowers play in our society by insuring quality control and holding businesses accountable.

Furthermore, the specific targeting of individuals engaged in expressive activity is without the stringent requirements necessary to justify infringing on First Amendment rights, and therefore cannot pass Constitutional muster. One such requirement is a demonstrable compelling government interest – a standard which many Ag Gag bills cannot satisfy. As the Supreme Court recently held in United States v. Stevens [3], overbroad statutes that excessively infringe upon protected expression, even depictions of animal cruelty, impermissibly violate the First Amendment. As the Court made clear, the government is free to criminalize the actual cruelty but cannot regulate the recorded evidence to the point of violating the First Amendment, as H.B. 110 attempted to do.

Ultimately, all “Ag Gag” efforts attempt to circumvent the protections afforded to both citizens and journalists by the First Amendment under the guise of promoting the swift recognition and rectification of animal cruelty. The New Hampshire House of Representatives should be commended for recognizing this threat and dealing with it accordingly.

[1] See Mark Bittman, Who Protects the Animals?, N.Y. Times (Apr. 26, 2011), (describing proposed legislation as “ag-gag” laws)

[2] Desnick v. American Broadcasting Companies, Inc., 44 F.3d 1345, 1355 (7th Cir. 1995).

[3]United States v. Stevens, 559 U.S. 460, 482-83 (2010).

Exemption to APRA Blocks Access to Correspondence in Cranston Parking Ticket Debacle

By Steven Brown

On November 15, immediately after the Cranston City Council narrowly defeated a proposed police union contract, the wards of two Council members who voted against the contract were flooded with parking tickets. As Steven Stycos, one of the Council members, documented, 128 tickets were issued in those two wards in the two nights following the vote, while only nine tickets were issued in the entire rest of the city. The 128 tickets actually exceeded the number of parking tickets that police had issued in the entire city during the months of September and October combined.

This disturbing use of power by police to apparently retaliate against public officials raises serious issues. Just as serious is the question of how much information about the scandal will be shared with the public. That is because Rhode Island’s Access to Public Records Act (APRA) contains overly-broad exemptions that may keep critical documents shielded from public view.

For instance, what did the Mayor know about the ticketing, and when did he know it? Unfortunately, APRA excludes from disclosure any “correspondence of or to elected officials in their official capacities.” Another broad exemption for law enforcement records could similarly be used to hide many of the records that shed light on this controversy. To top it off, a separate statute known as the Law Enforcement Officer Bill of Rights (LEOBOR) includes broad confidentiality protections for any police officer who is the subject of disciplinary proceedings.

In response a statement from the captain (who is also the police union president) alleged to be behind the ticketing blitz that he was waiving his rights to confidentiality, the ACLU of Rhode Island has filed an open records request with the police department to seek answers to one piece of the puzzle. Did the captain, as some anonymous sources stated, deliberately use a personal cell phone, as opposed to the police department radio system, to orchestrate the ticketing? The ACLU has asked for, among other documents, the police logs and recordings of the captain for those two nights to find out.

The police department’s response to this APRA request will tell a lot about how open the City is going to be in letting the public in on the details of this emerging scandal. It may also likely tell us that open government advocates have a lot more work to do in strengthening APRA in order to protect the public’s right to know.

Steven Brown is the Executive Director of the Rhode Island ACLU.

Reflections on an FOI Odyssey

By Brent Curtis

The legal odyssey that I and my newspaper engaged in for the last three years started not as a question about freedom of information, but as a question of whether or not a police sergeant for the city of Rutland was being criminally investigated for downloading child pornography on his work computer. 

It took a judge’s ruling to get an answer to that question, as the only piece of evidence that I could find was a search warrant that had been inexplicably sealed by an out-of-county judge. The contents of the warrant and the investigation it described against an acting member of the police force was news to a lot of people – including the members of the Police Commission which oversees the department. Neither they nor any city official outside the police department had been informed that the criminal inquiry was taking place.

The stories I wrote led to the immediate suspension and eventual termination of the sergeant. The criminal investigation ended with a determination that there was insufficient evidence that the sergeant possessed child pornography. However, he was charged with neglect of duty and lying to police – offenses he later pleaded guilty too.

But the broader and perhaps more important story played out during the next three years in legal arguments over access to internal police records that would go all the way to the Vermont Supreme Court. Twice. In the end, the high court granted access to those records and outlined a test for courts to use in determining whether the public’s interest outweighs privacy rights in requests for so-called “personal” records.

State legislators also took note of the Herald’s case and – after the fact – amended a state public records exemption that previously allowed police and prosecutors to refuse access to any records “compiled in the course of a criminal investigation” indefinitely.

The newspaper’s work, which included the investment of more than $80,000 worth of legal fees, chipped away at a public records law in Vermont which is riddled with 239 exemptions. Those exemptions make access to public records a cumbersome and confusing process with all-too-often no remedy outside of a court of law for those seeking access.

If a news organization backed by legal counsel has to wage a protracted and expensive battle for access to the public record, what hope does the average citizen have?

James Risen’s Litigation: A Turning Point for Press Freedoms

By Rosanna A. Cavanagh

The subpoena of James Risen, an investigative reporter for The New York Times, to testify at the trial of Jeffrey Sterling, a former employee of the CIA, has been the subject of a two-year litigation, the resolution of which will either help spur an era of restoration of our cherished First Amendment freedoms of speech and the press, or forever change the playing field upon which investigative journalism is practiced, creating a wall of secrecy between government and journalist and necessarily a curtain of darkness over the workings of government to the average citizen.  On Feb. 7, 250 New Englanders will gather in Boston to bestow the Stephen Hamblett First Amendment Award on James Risen.  The significance of the event is much deeper, however.  In the city that showed the world the importance of political symbolism with the Boston Tea Party, another act of symbolism will be performed.  We will vote with our feet for the direction we wish to see our country go.

Presently the petition for a writ of certiorari by James Risen sits with the Supreme Court of the United States.  If the Supreme Court grants his petition and hears the case, it will rule on a fundamental question that U.S. Circuit Courts have been unable to decide consistently: should journalists have a privilege rooted in our First Amendment freedom of the press not to reveal sources, when those sources are under criminal prosecution (especially when more frequently and in the Risen case the crime being charged is leaking and conveying classified information).  The 4th Circuit broke with four other circuit courts in July by ruling that reporters should have no such protections (even protections that would be subject to a balancing of interests to be performed on a case by case basis).  The rehearing of the case was denied by the full Court of Appeals in October and the writ petition was filed on Jan. 13.

Why does this case matter?  Because open governance matters and lies at the heart of true democracy, something that several government agencies seem to have forgotten in the post 9/11 era.  Judge Damon Keith’s opinion in Detroit Free Press v. Ashcroft concerning secret deportation hearings of suspected terrorists conducted by George W. Bush’s administration stated that “democracies die behind closed doors.”  Risen wrote State of War to bring into the public eye and discourse the way our war on terror has been prosecuted out of public view.  Revelations in the chapter at issue in the litigation have to do with activities of the CIA around the world, including a secret plot in Iran that perhaps did more harm than good to our national security.  This incident raised issues that arguably deserve a public airing, at least after the fact to see what we can learn from our mistakes and what, if any, procedures could be put in place to avoid such pitfalls in the future. 

This episode is by no means unique; from time to time in our nation’s history all branches of government have engaged in bad practices only revealed to the public and exposed to correction by the leaks of confidential sources.   Risen’s certiorari petition cites  “countless stories of tremendous historical significance” including: the Watergate break –in and cover up, the abuse of prisoners in Abu Ghraib, Iraq, the existence of secret CIA prisons in Eastern Europe, the use of warrantless wiretaps on U.S. citizens and systematic lack of adequate care for veterans at Walter Reed Army Medical Center as examples of stories that would never have been written without the reporter’s ability to promise sources confidentiality and keep those promises.  The decision in the Risen case will change the reporter’s ability to keep those promises without spending time themselves in jail— an honorable act of sacrifice, no doubt, but why such a cost should be extracted from journalists in a civilized democracy must leave us to wonder.

It is not a forgone conclusion how the U.S. Supreme Court will rule.  Of the five circuits that have ruled on this point, four have held that a qualified reporter’s privilege derived from Justice Powell’s concurrence in the 5-4 Branzburg v. Hayes decision should be allowed in criminal cases. Two other circuits have gone farther by applying the privilege even where non-confidential information is at stake.  The split decision of the 4th Circuit Court of Appeals panel was a departure from the trend in other circuits; the 13-1 decision not to re-hear the case by the full 4th Circuit Court of Appeals was surprising.  The Branzburg case involved the criminal activities of the Black Panthers and a special setting of a grand jury proceeding.  The special role of the grand jury proceeding was highlighted in the opinion; “the longstanding rule that ‘the public has a right to every man’s evidence’… is particularly applicable to grand jury proceedings,” wrote the court.  Justice Powell with his deciding vote in a concurrence wrote that competing interests should be balanced on a case by case basis:  “the asserted claim to privilege should be judged on its facts by the striking of a proper balance between the freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.” Other circuit courts have adhered to Powell’s approach by distinguishing the grand jury setting from other criminal proceedings, allowing reporters’ privilege to prevail in other settings.

Another important distinction making Risen’s case (and a trend of other cases in the Obama administration Justice Department) different than the situation in Branzburg is that the main crime here for which the alleged source is being charged and for which Risen’s testimony would be relevant is the communication itself.  (Jeffery Sterling is charged with unauthorized retention and communication of national defense information; unlawful retention of national defense information; mail fraud; unauthorized conveyance of government property; and obstruction of justice.)   It is one proposition to say if the only way to convict a multinational drug dealer is to get the only evidence available from a reporter for whom he was a source, we should do it.  It is quite a different proposition to say that we are going to prosecute anyone who leaks classified information to a reporter as a criminal and bring the reporter into the litigation by using the criminal/civil distinction to eviscerate his privilege.  The fact that information is classified can become an arbitrary distinction under a regime of over-classification; a committee established by Congress, the Public Interest Declassification Board, has found that over-classification is “imped[ing] informed government decisions and an informed public” and, worse, “enabl[ing] corruption and malfeasance.” (One government agency it studied was found to be classifying the electronic equivalent of 20 million filing cabinets filled with text every 18 months.)  PolitiFact found that Obama’s administration has used the Espionage Act, a dusty law from World War I era, to prosecute leakers of classified information more times than all other previous administrations combined.  These two simultaneous developments are troubling indeed to those who believe in transparent governance.

Justice Gregory wrote in his dissent to the 4th Circuit opinion that “guarantees of confidentiality enable sources to discuss ‘sensitive matters’ …[e]ven in ordinary daily reporting… If reporters are compelled to divulge their confidential sources, the free flow of newsworthy information would be restrained the public’s understanding of important issues and events would be hampered in ways inconsistent with a healthy republic.”  James Risen has determined not to divulge any information about his sources.  In doing so, he is taking a stand to protect the free flow of information in our democracy.  The international watchdog the Committee to Protect Journalists cites 211 journalists imprisoned around the world in 2013.  Let’s not have the United States add to that number in the coming year.  Let us hope that wisdom will prevail and the United States Supreme Court will breathe new life into our First Amendment freedoms, so we can again be a beacon of light to the rest of the world.

To watch in 2014: Ag-Gag Bills Pose Problems for the Public’s Right to Know

  By Rosanna Cavanagh
 As we ring in the New Year without a new farm bill, we put off until next year the resolution of an important right-to-know issue of significant public concern.  If you eat, live near a farm, or care about animals, this bill should concern you, and so, it concerns us all.Last month, NEFAC joined with National Freedom of Information Coalition and 44 other organizations to raise the alarm against certain proposed provisions which would exempt from disclosure basic information about agricultural and livestock operations, including information that individuals living or sharing  a waterway with “concentrated animal feeding operations” (or CAFOs) urgently need to protect and advocate for their environment and the health of members of their communities.  These “CAFOs” are otherwise known as factory farms, where animals are mass produced in a small area, and so fed antibiotics to prevent widespread bacterial infection. Such use of antibiotics in CAFOs lead to the accumulation of antibiotic-resistant bacteria in their waste products which advocacy groups posit will pass into the neighboring waterways, posing health threats to surrounding communities.  This may be the motivation for the provisions of the farm bill which would require the EPA to withhold basic location and contact information about agricultural and livestock operations.

H.R. 2642 (known as the Farm Bill) is currently listed on the congressional budget website with the status of “resolving differences.”

The farm bill on the national level is only part of the puzzle with regards to the efforts by some members of the agricultural industry to shroud with secrecy what goes on behind closed doors.  At the state level, bills have popped up in more than ten states in 2013, including New Hampshire and Vermont.  While these efforts have met with steep resistance this year leading to defeats to bills in 11 states, we can be most certain the industry has not yet given up on these attempts to shut the critical eyes of journalists and watch dog organizations on the sometimes inhumane or downright disgusting practices that take place at the sites of the worst offenders.  According to Kenneth Bunting, of NFOIC, the ”so-called ‘Ag-gag’  provisions that have found their way into numerous states’ statutes, and which hopefully will be stricken from the federal Farm Bill if Congress ever gets around to doing its job, are overreaching bad ideas aimed at hiding vital  health and safety information from the public. The powerful Agri-business interests pushing these do not have family-farm privacy or any other public interest at heart.”  Staff Attorney at the Vermont ACLU, Dan Barrett, wrote in a letter to the editor of the Burlington Free Press that “FOIA already has strong personal privacy protections for individuals that protects farmers and ranchers from having their intimate details made public.  There is not need to extend personal privacy to the busines and commercial aspects of farms, particularly where reduced access to information will leave us all in the dark about changes to our environment.”

We must only remember muckraker Upton Sinclair’s The Jungle, the expose on the Chicago meatpacking industry, to recall what is at stake with regards to our food consumption. Sinclair said of his work that he “aimed at the public’s heart and by accident I hit it in the stomach.” Perhaps we will find the same is true of such efforts by groups like the “Humane Society of the Unites States” and “Mercy for Animals” who work with undercover journalists that seek jobs at animal agriculture facilities and secretly document animal cruelty and unsafe food practices.  Perhaps this is why the American Society for the Prevention of Cruelty to Animals found in a 2012 poll that 71 percent of the American public “support undercover investigative efforts by animal welfare organizations” to document and criticize the practices of the offending agricultural and livestock businesses without adequate controls.  Let’s all stay tuned in 2014 to see what will come next.

Legislative Task Force Adopts Look, Listen but Do Not Copy (Without a Trip to the Commission) Rule

By James H. Smith

Smith, James

When Connecticut legislators met in secret last session, working with the families of the victims of the Sandy Hook Elementary School shootings, they came out from behind closed doors long enough to pass legislation making secret crime scene photos and certain 911 tapes of every homicide in the state henceforth.

The legislature also created a task force to study the balance between victim privacy and the public’s right to know, but stacked the 17-member body with privacy advocates. I am among the seven members clearly in favor of transparency.

When state Superior Court Judge Eliot Prescott, after listening to arguments last month from Danbury State’s Attorney Stephen Sedensky to keep the 911 tapes secret, ordered them released; Chief State’s Attorney Kevin Kane urged his fellow task force members to get moving and recommend laws that provide for more secrecy.

The task force has been meeting since August, and has adopted recommendations this month that would allow limited access to crime scene photographs, 911 recordings and other audio or video depicting the condition of homicide victims.  The access recommended would be for citizens and journalists to listen to the audio tapes or view the photographs or visual images so long as copies are not made.  It also creates a process for requesting copies which would shift the burden to the access seeker to show it is not an “unwarranted invasion of personal privacy” to release the copies.

This recommendation came after months of meetings where the viewpoints of open government advocates and victims’ advocates were in sharp relief.  It is clear listening to the tapes of staffers at Sandy Hook School calling 911 while the shooting and killing was going on, that our society has things it must learn from those tapes. Law enforcement experts are now debating whether Newtown police responded correctly. Those tapes also show the courage of school staff and the calm and professionalism of police dispatchers.

Proponents of privacy sought to get rid of Connecticut’s “Perkins test” on releasing information about crimes, and “codify” the federal “Favish” standard, which essentially shifts the burden of proof from the government to the public on showing why investigative files should be made public. The problem with the Supreme Court Favish decision, keeping the photos of Clinton adviser Vince Foster secret, is that it requires a citizen to prove the photos are of legitimate public interest, but does not allow the citizen to see the photos.

The Connecticut Supreme Court Perkins decision has been the guide for releasing information for more than two decades. In order for information held by the government to remain hidden, the government must show that the information sought is “highly offensive to a reasonable person” AND is not of “legitimate public concern.” Both standards must be met, or the information is public.

Traditionally, Connecticut has been viewed as a state with envious FOI statutes, but the voices of privacy are touting federal “standards,” masking how the federal FOI laws are limpid compared to Connecticut’s.

The stated aim to “protect” Newtown families expanded to include the families of victims of all homicides when inner city legislators argued that the state is shielding white suburbanites and ignoring the plight of minorities. Presented with data that showed case after case of law enforcement malfeasance against minorities (the Connecticut chapter of the ACLU testified that 80 percent of police taserings in the state are against minorities) some task force members are rethinking the wisdom of closing files to the public. There is justice to be found in those files.

Co-chair of the task force Angel Arce, who represents Hartford in the state House of Representatives, issued a statement acknowledging that “constituents of urban districts… are more likely to be victimized by crime but they are also more susceptible to police abuse and mistreatment. We must have public oversight of law enforcement agencies and the criminally accused must have the capability to obtain information needed for their defense. I recognize that this is best accomplished through public disclosure of government records.”

But then he was also one of the members of the task force most vociferous in keeping that information from the public. Like all the privacy advocates, he says “I am confident that a balance can be struck in which we protect the dignity, privacy and safety of crime-victims and witnesses, but preserve the tools that are necessary to hold government accountable.” In the end, he supported the proposal exempting from copying crime scene images of homicide victims if the images “could reasonably be expected to constitute an unwarranted invasion of privacy.”

He espouses codifying the Favish standard, defining an invasion of privacy as “being ‘warranted’ if a requestor produces evidence sufficient to warrant a belief by a reasonable person that: 1. A government official acted negligently or otherwise improperly in the performance of his or her duties; and 2. The image requested is likely to be probative of such negligence or impropriety.”

The burden is shifted to public away from the government.

He supports the change to the law last year that puts off limits “that portion of an audio tape or other recording where the individual speaking . . . describes the condition of a victim of homicide.”

Chief States Attorney Kane, a task force member, supported permanently making that language the 28th exemption to the state FOI law. When the law passed in 1975 there were 10 exemptions.

The current compromise recommendation, brainchild of  Klarn DePalma, general manager of WFSB-TV in Hartford and a task force member,  would set up a depository for crime scene photos and allow copying only in cases where the requestor can show there is not an “unwarranted invasion of privacy.”

As president of the Connecticut Council on Freedom of Information, I am not seeking compromise. I hoped to see the restrictions the legislature passed last year repealed, and that the long-standing FOI laws on release of crime scene photos and 911 tapes, reinstated.

Now that the task force has prepared a report to the legislature,  legislative leaders have promised the public hearings they did not have last session.  Let us hope they keep their word.

Many transparency advocates have testified before the task force, a sampling:

“The passage of new legislation … modifying the Connecticut Freedom of Information Act severely damages the strength of what has been heretofore a model freedom of information regime. . . (and limits) understanding the truth.” Rosanna Cavanagh, NEFAC executive director

“Connecticut is heading down a dark path… becoming one of the more secretive in the nation… Connecticut (is now) ranked 25th in the nation… with these provisions it sinks into the more secretive part of the country. It’s now what I call a dark state … worse than New York and New Jersey.” David Cullier, PH.D., president of SPJ, director, School of Journalism, University of Arizona, Tuscon.

“There is no area where public transparency is more vital than in the administration of justice … when the police and prosecutorial powers of the state are exercised in the name of society at large… the public good requires a way to expose mistakes, inadequacies or misconduct in the criminal justice system.” Claude Albert of CCFOI

“The 29th Amendment to Connecticut’s Constitution addresses victim’s rights, but nowhere in that provision is there mention of ‘victim privacy.’ There is a very good reason for this omission. The amendment does require that victims be accorded ‘fairness and respect’ but nowhere in the constitution, either explicitly or implicitly, do victim rights override the fundamentals of all criminal law: 1. Criminal prosecutions are brought by the government on behalf of society as a whole; 2. The justice system is accountable to the people, as is the rest of government in a democracy. 3. Because of the extraordinary powers conferred by the people on the police, prosecutors and courts, fairness for the accused and transparency to society are the essential prerequisites to the credibility of the criminal justice system.” Mitchell W. Pearlman, retired executive director of the Connecticut FOIC

“Government, our forefathers taught us, is susceptible to all sorts of unscrupulous pressure. After the mass killings at Columbine High School in 1999, the Jefferson County Sheriff’s Department knowingly withheld vital information from the public — and more importantly — from the families of the victims themselves for five years.  Why?  To avoid the possibility of embarrassment and lawsuits. . . Keeping information from the public can actually have the effect of enflaming opinion. At Columbine and at Newtown, conspiracy theorists were at work almost immediately. Facts — clear-eyed information – are the best, and possibly the only, antidote to such unbridled speculation.” Jonathan Kellogg, executive editor of the Waterbury Republican and past president of NESNE.

 James H. Smith is a retired newspaper editor and president of the non-profit Connecticut Council on Freedom of Information.

Maine Supreme Court Makes 911 Transcripts Public

By Cliff Schechtman

Cliff SchechtmanPORTLAND, MAINE – The Portland Press Herald won a landmark freedom of information case last month that will now allow the public to better evaluate how well first responders do their job.

In a unanimous decision that reversed a lower court, the Maine Supreme Judicial Court declared that 911 transcripts  should be released to the public.

The case involved a Biddeford teenager and her boyfriend who had called 911 seeking protection from their threatening landlord. Police responded to the 911 call, determined it was a “civil matter” and left.

Three minutes later, both teens lay dead. York County Prosecutors say James Earl Pak, 74, shot to death Derrick Thompson, 19, and Thompson’s girlfriend, Alivia Welch, 18 in Dec. 2012. Thompson’s mother, Susan Johnson, also was shot but survived.

Why did police leave the scene and what exactly did the victim tell dispatchers when he called? Did the caller say that the landlord was threatening to kill them? (The answer is yes, but more on that later.)

These are some of the questions the Portland Press Herald had been trying to answer but was stymied by law enforcement’s refusal to release the 911 tapes and a superior court’s poor understanding of the public records law.

Deputy Attorney General William Stokes, head of the Attorney General’s Office’s criminal division,  had denied the newspapers records request  on the basis that releasing the information would interfere with an ongoing investigation.

“As chief, it is my position that the requested material constitutes intelligence and investigative information and should not be publicly released,” Stokes wrote in his response. “It is the position we have taken in every single homicide investigation. End of story.”

But Mr. Stokes did not have the last word. The Supreme Court decision, written by Justice Ellen Gorman, stated “We conclude that the state failed to meet its burden of establishing the reasonable possibility that disclosure of the Pak E-9-1-1 transcripts would interfere with law enforcement proceedings.”

The ruling sets a legal precedent for the release of transcripts that the state had deemed confidential.

Stokes said that the position of his office has been consistent and conforms with an exemption in state law that says information can be withheld if its release would jeopardize an investigation.

But that’s not what the law says, according to Sigmund Schutz, the newspaper’s lawyer. “There is a specific language in state law that says 911 transcripts are public records,” Schutz said. “If they can’t release those records, they need to say what information contained within would compromise the investigation. Then, that information can be redacted. The (state’s) position is to not release any information and say, ‘Trust us.’”

Maine is in the minority on the issue. Thirty-nine states have no restrictions on the release of 911 calls or the information in them, according to the National Conference of State Legislatures. Five states, including Maine, impose some restrictions. Six states keep 911 recordings confidential.

Sigmund Schutz, the attorney who represented the Press Herald in the appeal, said that although the ruling is specific to the Pak case, it will have a broader effect on public information and the public’s right to know.

“It does reject the notion that we can have a sort of categorical assertion that records held by law enforcement are confidential,” he said.

Schutz called transcripts of 911 calls a “core source of hard information in reporting on emergency situations,” which allows the public to assess how its government does its job.

“This is a big victory for the newspaper and the paper’s choice to stand and fight in this field. It’s a strong endorsement of the public’s right to know and the value of public records,” Schutz said. “We all want law enforcement to be able to catch bad guys. I don’t think this harms their ability to do that. I think it says you need a level of transparency in how you do that.”

Six groups joined the Portland Press Herald in the lawsuit, filing amicus briefs with the court: The Reporters Committee for Freedom of the Press, the New England First Amendment Center, the Maine Association of Broadcasters, the Maine Freedom of Information Coalition, the Maine Press Association and The Associated Press.

Patrick Strawbridge, a lawyer who represented that coalition, called the decision “a substantial victory for access in the state of Maine.”

“The decision puts Maine within the mainstream of states that allow access,” he said.

Strawbridge said the court acted cautiously by ruling only on the Pak case, leaving the possibility that other requests for 911 calls or transcripts could be rejected.

“It’s certainly not unreasonable that the state could be afforded some ability to keep calls confidential,” he said. “But the state had been saying that all calls are presumed secret throughout the pretrial process.”

Kenneth Bunting, executive director of the National Freedom of Information Coalition, said state access laws regarding 911 tapes and transcripts are “all over the map.” The general rule, though, is that they are public. “And they should be public,” he said.

Bunting said such legal fights are one reason the National Freedom of Information Coalition exists.

“The amount of advocacy by news media, who were once stewards, has been going down,” he said. “News organizations are less interested and less inclined to take these fights on. So when they do, it’s important.”

Zachary Heiden, legal director for the American Civil Liberties Union of Maine, called the ruling a victory for the public.

“Records like this provide valuable information on matters that the public should care about, such as potential shortcomings in emergency response systems,” he said.

The court has made it clear that government secrecy cannot win out over the public’s right to know. This ruling will allow the public to better evaluate how well first responders protect and serve their communities.
The Portland Press Herald finally received the transcripts  in late November and reported that 19-year-old  Thompson had told police dispatchers that Pak made “death threats” against him and that he felt threatened enough to ask for an immediate police response.

“He’s giving me death threats, pointing his fingers like it’s a gun going bang,” according to the transcript.

When asked about the victim’s call, Biddeford Deputy Police Chief JoAnne Fisk told the Press Herald that she did not know whether a dispatcher shared that information with responding officers. She also said she didn’t know whether the officers had asked Pak if he had a gun.

Pak has pleaded not guilty. The case against him remains pending in York County Superior Court
Cliff is executive editor of the Portland Press Herald. Some of the information for this piece previously appeared in the Press Herald.

Barge! What Barge!? Oh, That Barge!

By Jennifer McDermott

NEW LONDON, CONN –  Before it was a “Google barge,” it was New London’s mystery barge.  Construction on the four-story structure began

in the late spring at the Admiral Harold E. Shear State Pier near downtown New London.

One of the early theories among staff at The Day and the readers who called us asking about the construction was that the building was a facility for Defense Department research. Groton, which is next to New London, is known as the “Submarine Capital of the World” because it is home to a Naval Submarine Base and submarine manufacturer Electric Boat. Others believed it was a movie set, floating prison, condominiums or office space. Proponents of the jail theory even jokingly suggested it could house supervillains.

As the paper’s defense reporter, I was asked to figure it out.

I first e-mailed a source at the state Department of Transportation, since that department is responsible for the pier. I expected a quick reply explaining the nature of the project.

Instead I was told there was “vertical construction” being added to a barge by “a company” leasing dock space. He acknowledged his response was “a bit vague” but said that was all he could provide, “at the request of the Lessee.”

Over the next month I contacted every agency and individual I could think of that could have anything to do with the construction at State Pier – the state Department of Transportation; state and federal Occupational Safety and Health Administration offices; local politicians, business executives and military spokesmen; Connecticut’s Office of Military Affairs, Office of Film, Television and Digital Media, and Department of Energy & Environmental Protection; the U.S. Environmental Protection Agency; Coast Guard; Department of Defense; city of New London; Logistec USA, which leases pier space from the DOT; and others.

I was told over and over again that either they were not involved, or could not talk about it.

A marine inspector at Coast Guard Sector Long Island Sound reviewed the plans but told the sector spokesman he could not discuss them “for proprietary reasons.” I filed a Freedom of Information Act request for all of the Coast Guard documents related to the construction.

Turner Construction leased space from Logistec to build the structure. The job superintendent for Turner Construction did not return calls for comment and security guards at the site said the only thing they were told was to watch the building until it was taken away.

After I learned the barge would be towed to Maine in early October, I wrote a story on Sept. 28 describing the speculation and quoting the various agencies and individuals on why they could not explain the mysterious structure’s purpose.

I wrote a second story on Oct. 9 when the barge left New London for Portland, Maine, and an editor alerted the Portland Press Herald that our mystery barge was headed their way. The photos published with that story helped generate more interest in the matching barge in San Francisco Bay because reporters there saw the strong resemblance to their barge.

On Halloween, the Coast Guard responded to my FOIA request with a four-page “activity summary report” that described the oversight of the construction. Google was named as a project manager and specifically, Michael Tierney, of GoogleGlass, was said to have reviewed the plans.

The report revealed a plan to operate the vessel in various ports, the first being New York Harbor, and showed that the New London barge was the sister to the barge in San Francisco Bay.

My story was published online that night. The Day promoted the story using social media and text alerts.

After weeks of speculation, the mystery was finally solved.


Jennifer McDermott is a reporter for The Day.


The Diminishing Public View

By Rosanna Cavanagh

Have you noticed lately that it seems we are taking a trip down the rabbit hole when it comes to citizen privacy versus the public’s right to  cavanagh,roseknow? The new norm has become that we citizens have no reasonable expectation of privacy (witness the NSA’s amassing of warehouses of information about  us) but the government that we elect and support with our tax dollars has every expectation of privacy and shutting the public out has become the new norm (see the recent report by the international group, the Committee to Protect Journalists). Is this the way a democratic society is supposed to function or have we somehow landed in Alice in Wonderland where everything is flabberghastingly backwards? Shouldn’t private citizens have some legitimate expectation of privacy and the government behave in a more open and transparent way?  This past week, New England First Amendment Coalition joined 38 other groups, including The Associated Press and the White House News Photographers Association, in the latest challenge to this disturbing trend of the diminishing public view, calling on the White House Press Secretary, Jay Carney, to improve their policy towards  photojournalists who are continually being denied access to photograph or videotape the President while he is performing seemingly official functions at the White House. “As surely as if they were placing a hand over a journalist’s camera lens, officials in this administration are blocking the public from having an independent view of important functions of the executive Branch of government,” the letter protests. Meanwhile, the White House has taken to releasing its own photographs of the “private” events on social media, undercutting the contention that the event should be deemed private after all.

These actions raise real constitutional concerns.  As the letter argues, the First Amendment protects “’the public and the press from abridgement of their rights of access to information about the operation of their government.’” (Richmond Newspapers Inc. v. Virginia)  Another Supreme Court case, Press Enterprise II, considers the proper standards for closure of government functions to the public and considers two factors: 1) “whether the place and process have historically been open to the press and general public” and 2) “whether public access plays a significant positive role in the functioning of the particular process in question.”   If the court finds a qualified right, the government may overcome that right only by demonstrating “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”  It seems that by breaking with how previous administrations have dealt with White House press access, the administration would  run afoul of these standards.

As disturbing as it is, the restriction of photojournalists from the White House is only one factor in the diminishing public view.  As the Special Report on “The Obama Administration and the Press” by the Committee to Protect Journalists outlined, “[i]n the Obama administration’s Washington, government officials are increasingly afraid to talk to the press.”  This stems from the fact that the administration has undertaken an unprecedented effort to crack down on leakers; eight government employees or contractors have been the subject of felony criminal prosecutions under the 1917 Espionage Act during the Obama administration, which is three times the amount of all previous administrations.  Another factor in the changed relationship between the government and the media is the implementation of an “Insider Threat Program” which requires all federal employees to help prevent unauthorized disclosures of information by reporting on their own colleagues if they expect such behavior.  The report quotes Washington Post  national security reporter Rajiv Chandrasekaran, as saying that “’one of the most pernicious effects is the chilling effect created across government on matters that are less sensitive but certainly in the public interest as a check on government and elected officials. It serves to shield and obscure the business of government from necessary accountability.’”

Meanwhile on the other side of the coin, we United States citizens can no longer live in a ignorance is bliss state, thinking we have a modicum of privacy.  The Wall Street Journal reports that NSA’s monitoring of Americans includes “customer records from the three major phone networks as well as emails and Web searches” and credit-card transactions.  Every time an American makes or receives a call the government is collecting information on to and from whom and how long the call takes. The information collected also contains who we are emailing and what we are purchasing by credit card.

And we know that the privacy of news organizations are particularly being targeted by multiple government departments.  Witness the massive dragnet of a subpoenas from the Justice Department to The Associated Press cellular, office and home telephone records of individual Associated Press reporters and editors in Washington, New York, and Hartford, Conn., as well as the main number for AP reporters covering Congress.  Using the phone records, the Justice Department extracted a guilty plea from Donald J. Sachtleben, a former FBI bomb technician working as a contractor for the bureau, for “unlawfully disclosing national defense information relating to a disrupted terrorist plot” in Yemen. Sachtleben agreed to a 43-month prison sentence in the leak case.  This coupled with the new precedent of prosecuting members of the press such as James Rosen as “aiders and abettors” of leaks, should send chills down all of our spines.

So let’s remember why this is happening.  The Patriot Act, an effort to respond to 9/11 terrorist attacks by making America safer has paved the way to all of these disturbing trends by getting rid of all of those annoying and outdated protections on our freedom and privacy, allowing expanded domestic surveillance activities.  Yet, sadly, the very officials who wish to spare America another attack have instead allowed our enemies to add another 317 million names to their list of victims.  Yes, all of us living here in the United States become their victims when our freedom is diminished as a result of our government’s response to their actions.  Our own President feared this trend as a Senator giving a speech on the Senate floor in 2005 calling the Patriot Act “just plain wrong” and criticizing how it put the “Justice Department above the law.”  I would hope he could again be persuaded to see this folly and take the hand off the camera lens and the vice grip off government officials who would seek to talk to the press.  Letting the photojournalists back into the White House and passing a federal shield bill for reporters would be good first steps in reversing this trend.  Mr. President, please put some substance behind your promise to lead the most open and transparent administration in U.S. history.

VT Supreme Court Opens Police Porn Case to Public

By Brent Curtis


RUTLAND, Vt. – The Vermont Supreme Court has ruled in favor of the public’s right to access to the criminal and internal investigations of two Rutland police officers who viewed pornography on work computers.

More than three years after the Rutland Herald’s initial request for the records was denied by the city, the court’s five justices on Oct. 11 unanimously affirmed a Rutland civil court decision. The lower court had found the public interest in the activities and identities of officers who accessed pornography at work outweighed any privacy rights of those city employees. The city appealed that ruling.

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