By Dan Kennedy • The press, politics, technology, culture and other passions

Press barred from public tour of public school

You wouldn’t think that when public officials tour a public school, anyone would be brazen enough to bar a news organization by claiming it’s a “private event on private property.” But that’s exactly what happened on Wednesday, according to the Newton Tab, which had assigned a reporter and a photographer to cover a tour of the $200 million Newton North High School construction site.

The Tab’s Dan Atkinson reports that Mayor David Cohen, a number of aldermen and members of the school’s design-review committee took the tour, but that Dimeo Construction wouldn’t allow the press to tag along — even though the event had been posted as being open to the public.

“It’s an essentially private event on private property,” Cohen spokesman Jeremy Solomon is quoted as saying. “It doesn’t entitle the media to attend.” Solomon added: “Elected officials deserve the courtesy to ask any questions without being concerned about how they’re portrayed in the Tab.”

The Newton North project — the most expensive public school in the history of the state, if not the known universe — has long been controversial. The Boston Globe’s Newton Wiki reports that the current price tag of nearly $200 million has almost doubled since 2003, when Cohen first proposed it. Newton voters approved it in a 2007 referendum.

Based on the facts as reported by the Tab, it’s unclear as to whether officials violated the Massachusetts open-meeting law, which, among other things, forbids private governmental meetings when there is a quorum present. Atkinson writes that “at least” nine aldermen took the tour — well short of a quorum, given that Newton has 24 aldermen. But if a quorum of design-review committee members was present, what took place might be considered an illegal meeting.

More important, what happened to the Tab on Wednesday was not just an affront to the press, but to the proposition that the public’s business should be conducted in public. As Tab publisher Greg Reibman said, “[I]t’s not the Tab that is being punished. It’s the taxpayers who are spending nearly $200 million on this project and they deserve to know how their dollars are being spent.”

More: Great catch by Michael Pahre, who notes that there is an “on-site inspection” exception to the open-meeting law. So, in all likelihood, no violation of the law took place. “That said,” Pahre writes, “the Newton officials were boneheaded in announcing this as a tour that is open to the public if they don’t want the press to attend.”

Still more: The Tab says that its reporter was allowed to take a tour today. But still no photos (or photographer), please.

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  1. Michael Pahre

    You guys should read the (Massachusetts) Attorney General's Guide to the Open Meeting Law ("Open Meeting Law Guidelines"). The Attorney General is charged with enforcement of the statute (and the Districts Attorney are also charged with its enforcement related to the municipalities like Newton that fall within their jurisdiction).Page 7 is clear that there is an exception for site visits:"Any on-site inspection of a project or program by a governmental body does not qualify as a meeting."Note that the Attorney General's guide is based on both the OML itself and case law. No footnote is given, but I suspect that the AG's statement is nonetheless drawn from case law.I have been involved in OML cases here in Brighton, and am an advocate for it. But I believe that the Newton North tour case, based on the information I just read, is not subject to the OML.That said, the Newton officials were boneheaded in announcing this as a tour that is open to the public if they don't want the press to attend. The press is supposed to enjoy no special privileges nor sanctions in the OML (or the state's Public Records Law) relative to the general public. If you don't want the press to attend, then don't invite the public.

  2. Dan Kennedy

    Michael: Good catch. But if any member of the public was allowed to tag along (I don't see any indication that that happened), then it would clearly be illegal to bar the media, which have neither more nor fewer rights than anyone else.

  3. greatergrafton

    What's interesting to me is the idea that the press has fewer rights than the general public. These days, almost everyone carries a phone with a camera, anyone can post to the Internet. You might keep out the local media person you do know, but there's nothing to stop a parent on the tour from shooting pictures and writing up her thoughts on her blog and sharing it far and wide.Trust me on this one. That's how my site started: with a school tour.

  4. Michael Pahre

    No, I don't think it would be illegal to bar the media while still allowing other members of the public to tag along.What law are you referring to that would bar someone holding a "private" meeting (i.e., not subject to the OML) from allowing some people to attend the meeting and ban others? I do it all the time.They could easily allow only people whose names have the letter "e" in them and not be breaking any law I can think of.Like I said in the comment above: even though I think they weren't subject to the OML and thus could ban the media (or anybody else) they wanted to, the Newton officials were acting boneheaded.When will public officials like them learn? People always want to go to the meetings that they're banned from. Once they get in, they find out they're boring as heck. There's no requirement that the public be allowed to speak even at meetings subject to the OML. Let 'em in and then watch as they fall asleep three hours in. Zzzzz…

  5. Dan Kennedy

    They could easily allow only people whose names have the letter "e" in them and not be breaking any law I can think of.Or they could just allow the whites in and bar the blacks! No, uh, they couldn't. Once you decide to let in the public, you have to let in everyone. You won't find that in the open-meeting law. You'll find it in the 14th Amendment.There's also federal case law that says local officials hold, say, a news conference and allow some reporters in but not others. Not the exact same situation, but perfectly analogous, and almost certainly close enough.

  6. Carl

    Or they could just allow the whites in and bar the blacks! No, uh, they couldn't.I'm not a lawyer, but my understanding is they can't bar blacks because race is a protected class under both federal and state anti-discrimination laws. People whose names begin with 'e' aren't a protected class. This is why my job can fire me for wearing an ugly tie, but not for being white.None of which is to say this wasn't a foolish move by the Aldermen. It was. But it's not clear to me that it was illegal.

  7. O-FISH-L

    A reporter never ceases to be a citizen. I think if it was advertised as a tour open to the public (not a tour for aldermen only,) the city may have a problem for denying a citizen the equal use and enjoyment of a public building.

  8. Dan Kennedy

    I think Fish has nailed it. If 10 members of the public showed up and one was barred, don't you think he or she would do rather well in a lawsuit?And no, it doesn't matter whether that person is a reporter or not.

  9. Greg Reibman

    The TAB reporter and photographer were the only non-invitees at the site yesterday that we are aware of.Jeremy Solomon, the spokesman for Newton Mayor David Cohen told me this afternoon that someone neglected to state that the tour was by "invitation only" on the public posting. I reminded him that this was their problem, not ours. He did not share this view and defended the decision to lock us out.

  10. lkcape

    "Invitation only?"….at a "public tour".What do we have here, a trainee for State Representative/Speaker of the House running things here?He's rating really high on the Bozometer.

  11. O-FISH-L

    LK, I'm not sure if he was ever considered Speaker material, but you are aware that this Cohen character served 18 years in the House of Representaives, including time as a powerful Chairman, right?

  12. Michael Pahre

    This may be nit-picking here, but I'm not sure that putting something on a "Public Notice Board" means that the public is invited to, or allowed to, attend. Under state law, the only kind of event that has a guarantee that the public can attend is one that qualifies under the OML.Dan, I am actually quite interested in hearing if there is a federal case where local officials were legally wrong to exclude some reporters and not others. I'm not a lawyer, or a professor of journalism, so I would like to be educated on this. I'm skeptical but open-minded…As "Carl" said, only certain classes of people are protected legally under federal and state anti-discrimination laws. My non-lawyer understanding is that they could include or exclude anyone they wished at this event.Regardless, please educate me on any relevant case law!

  13. Dan Kennedy

    Michael: I'm not a lawyer, either. But I am a longtime reporter, and I can tell you that the only reason government officials list events on the public notices board is because they are public meetings open to, you know, the public. Otherwise there would be no reason to list them. I think it's safe to say that if a member of the public had showed up for the tour of Newton North High School, Mayor Cohen would have had some explaining to do.Thirty years ago I would go to Winchester Town Hall every Monday morning, copy down all the public meetings, and put them in the Woburn Daily Times. Any member of the public would have had every right to show up at any of those events.In the 1974 case of Borreca v. Fasi, the U.S. District Court in Hawaii found that government officials couldn't bar one reporter from news conferences that were open to everyone else. Although not officially precedent anywhere except in that district (it was not appealed), Borreca is generally invoked as the standard everywhere.This 2005 article published by the Reporters Committee for Freedom of the Press lays out the overall landscape.The Baltimore case I was referring to — not the one you'll see in the RCFP article — was actually something different. It was about a reporter who demanded special privileges that some other reporters received, such as exclusive interviews and off-the-record briefings. She was shot down.

  14. Michael Pahre

    Thanks a lot, Dan, for educating me about the case law regarding how public officials may not single out certain journalists by not giving them access to press conferences (and interviews) with government employees (Borreca v. Fasi). I'm actually surprised that there is a fairly clear case on this particular issue.I still maintain — and probably in disagreement with you — that, in the Newton North school tour case, the city officials had every right to choose who attended it. Here's why:(1) The tour was not a meeting subject to the OML, since it falls under a site visit exclusion mentioned by the Attorney General's guide, hence it doesn't qualify as generally protected public access to interviewing officials, obtaining public documents, or otherwise gathering public information;(2) While posting a notification of the meeting on the Public Notice Board might imply that the city intended to allow the public to attend, since the tour was not subject to the OML city officials had the right to change the meeting's ground rules at any time; and(3) The TAB's story quotes the Mayor's spokesman as banning all media, not just some ("It doesn’t entitle the media to attend."), so Borreca v. Fasi does not apply because no particular journalists were singled out (and the story mentions no members of the public who were allowed in, either); Borreca further doesn't apply because Newton has no broad exclusion of contact with TAB reporters — they've just been kept out of this one event, as far as we know.Like I said, I suspect that, in the end, we will disagree on this case, and I'm willing to drop it… after letting you get in one last word on it, of course!P.S. If any one of the public (non-elected) officials on the tour took pictures, written notes, or a recording of the tour, however, the TAB should request those documents because they are public under the state Public Records Law, even if the meeting itself wasn't subject to the Open Meeting Law! This is the way for the TAB to get their pictures of the construction site…

  15. Dan Kennedy

    Michael: I actually agree with you. I don't think there was a violation of the law, based on the "on-site inspection" provision you found.Our only difference is that, by posting the tour as a public meeting, the city ran the risk of violating the law if members of the public showed up and then were banned. The city probably could have gotten away with it, but only by banning everyone, not by picking and choosing.

  16. Amused

    Actually, the on-site inspection provision is part of the definition of "meeting" in the section of the law that precedes the section commonly known as the Open Meeting Law.Now did the nine who attend constitute a quorum of any aldermanic subcommittee? If so, then the question becomes whether the conduct of the members extended beyond "on-site inspection." It would seem to me that if any discussion of a deliberative or evaluative nature is conducted during that tour means the participants lose the inspection exemption. The spirit of the law would seem to suggest that you can take a tour in private, but you'd better be very careful about what you talk about.

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