Last night I met a fledgling First Amendment hero: Michael Morisy, co-founder of MuckRock, a site where he posts public documents he obtains from filing public-records requests.
Morisy, as you might have heard, may be in trouble because of how Gov. Deval Patrick’s administration handled his request for records about how much money has been spent at various Massachusetts businesses under the federal food-stamp program.
The state complied with Morisy’s request. Then, in a classic CYA move, the administration — realizing after the fact that the release may have violated federal law — sent a letter to Morisy informing him he could be subject to a possible fine or imprisonment if he doesn’t take the information down. It was a ridiculous threat, and Morisy has refused to comply. The courts have consistently ruled that, under the First Amendment, the onus for keeping private records private is entirely on the keeper of those records, not on those who would publish them.
Nor is the privacy of any food-stamp recipients at risk. The records published by MuckRock, according to this Boston Globe story by Noah Bierman, do not identify any recipients.
It doesn’t seem likely that Morisy and his tech guy, Mitchell Kotler, are in any real trouble. In a follow-up in the Globe by Jonathan Saltzman, we learn that the Patrick administration issued a second CYA to cover its first CYA, assuring one and all that it never, ever intended to threaten MuckRock. Oh, no, of course not.
“At this point, I think the legal issue will blow over,” Morisy tells Chris Faraone of the Boston Phoenix. “But it’s still interesting, because all of a sudden people got very interested in what we’re doing.”
Still, you never know. Last night Morisy attended a panel discussion I moderated at Boston University on “Legal Liability in the Age of WikiLeaks,” with local First Amendment lawyers Jon Albano and Rob Bertsche. Bertsche, who has agreed to represent Morisy for free, made it clear that he doesn’t consider MuckRock to be out of the woods just yet.
Given the public attention this issue has received, I think Gov. Deval Patrick himself should announce that Morisy and Kotler are in no danger for posting records they received as a result of making a legitimate public-records request. Patrick should apologize while he’s at it.
Photo is from Morisy’s LinkedIn profile.
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The governor should apologize to Morisy and the people of Massachusetts for a letter that any reasonable person conveys the idea that a citizen could be fined and imprisoned for posting government records that have nothing to do with national security or any harm to anyone. In my reading of the federal law, the records should still be disclosed. And even if not, the government can’t imprison someone for posting them (see NYT v. US, Bartnicki, etc.). The state attorneys should have taken a basic First Amendment class to understand that the state’s threatening, misguided letter was something you might see out of Iraq or China. The state of Massachusetts should apologize publicly.
– David Cuillier
Society of Professional Journalists Freedom of Information chairman, assistant professor, University of Arizona