U.S. Reps. Ayanna Pressley, Stephen Lynch and James McGovern on a recent visit to the Plymouth County Detention Facility. “We came to Plymouth to conduct oversight of a major detention facility in our state, check on our constituents, and demand accountability of ICE,” Pressley wrote on Facebook.
A Massachusetts Superior Court judge has ordered Plymouth County Sheriff Joseph McDonald to turn over anonymized medical records regarding nearly 500 detainees he is holding on behalf of ICE. Judge James Budreau’s ruling, which he made in response to a lawsuit brought by the ACLU, was reported last week by Fred Thys of the Plymouth Independent. (Update: I’m told that Kevin G. Andrade of The New Bedford Light had it first.)
Last month I singled out McDonald for a New England Muzzle Award for claiming that his agency’s contract with ICE did not allow him to release medical records even with the names redacted, thus helping the rogue federal agency to cover up what was going on inside the county jail.
Budreau ruled that the ICE agreement did not preclude McDonald from having to comply with the state’s public records law. “The state maintains its right to reasonably police and ensure the health and safety of its population,” Budreau ruled. “And such a right is not usurped by the federal regulation at issue here.”
That’s hardly a theoretical concern. In a follow-up story, Tonia Alvarez of The Boston Globe (sub. req.) reported that “more than 50 people across the nation have died while in ICE custody,” citing Physicians for Human Rights.
McDonald, in an emailed statement to the Independent, said he would comply with the judge’s order.
To be fair to McDonald, Judge Budreau acknowledged earlier that the ACLU’s suit was not a slam-dunk, as it involved a clash between a state law and federal authority. Fortunately, Budreau recognized that the state has a right to know what’s going on behind the walls of its detention facilities.
Everett Square circa 1905. Photo is in the public domain.
Adam Gaffin has a wild story in Universal Hub about a lawsuit filed against the Everett Leader Herald and the city clerk by Everett Mayor Carlo DeMaria. There are all kinds of entertaining details. Among other things, we learn that the Leader Herald “has referred to DeMaria as ‘kickback Carlo,’ said he is ‘on the take,’ and referred to ‘DCF,’ or ‘DeMaria’s Crime Family.’”
What caught my eye, though, was that the Leader Herald has agreed to go along with a court order to identify 10 of 12 confidential sources. The names had previously been given to Superior Court Judge James Budreau, who ruled that their claim to anonymity was weak. In the following excerpt from Budreau’s opinion, Resnek is a reference to Joshua Resnek, the publisher and editor.
A threshold question facing the Court is whether Defendants have insufficiently supported their claim that the 12 sources used by Resnik [sic] in the articles core to this litigation were given a promised [sic] of confidentiality in exchange for their information…. Defendant Resnek subsequently filed an affidavit which states that all the sources at issue had “provided information to me based on the promise/understanding that their names/identities would not be revealed and would be kept confidential.” Not only does this averment lack specificity for each of the 11 [?] alleged confidential sources, but it’s unclear whether each source was promised or merely understood or believed that their identities would not be disclosed. If they understood, what was the basis of their understanding?
In other words, the judge concluded that Resnek failed to make a strong case that the sources had been granted confidentiality in the first place. Perhaps that will take the sting out of Resnek’s decision to go along with the judge’s order and allow those sources to be publicly identified.
The problem of keeping sources confidential in a libel case is reminiscent of a dilemma that The Boston Globe faced in 2002, when the paper was sued by Dr. Lois Ayash for incorrectly identifying her as the “leader of a team” that signed off on an overdose of an experimental chemotherapy drug that was given to two patients at Dana-Farber Cancer Institute. One of those patients was Globe reporter Betsy Lehman, who died as a result of the overdose.
In that case, the Globe refused an order by Superior Court Judge Peter Lauriat to reveal his confidential sources. Lauriat ruled that, because Ayash did not have the evidence she needed to pursue her suit — evidence to which she was entitled as a matter of law — then she should win her case by default.
“The Boston Globe, long a champion of the freedom of information and of unfettered access to public (and even not-so-public) records, has unilaterally and unnecessarily interrupted the free flow of information that may be critical to Ayash,” Lauriat wrote, according to an account by the Reporters Committee for Freedom of the Press. A jury awarded her $2 million, a judgment that was upheld by the state’s Supreme Judicial Court in 2005.
Richard Knox, the Globe reporter whose story was at issue in Ayash’s libel suit, thought the court should have respected his promise not to identify his confidential sources. “I’m disappointed that the courts don’t understand that honoring commitments to sources goes to the heart of what journalists do every day,” he was quoted as saying.
But though Knox and the Globe may have acted out of principle, they were mistaken to think that should have come without a cost. In fact, there is no ironclad legal right for journalists to protect their confidential sources. I’d say that Judge Lauriat made the right call in demanding that the Globe give up its sources; after all, Ayash was entitled to make her best case. The Globe also made the right call, expensive though it was, by saying no.
The situation in Everett, by contrast, is weird and hard to parse. Is Resnek really breaking a promise of confidentiality if the guarantees he made to his sources were not plainly stated, as Judge Budreau suggests? Needless to say, it will be interesting to see what those sources have to say.
Last month I singled out McDonald for a New England Muzzle Award for claiming that his agency’s contract with ICE did not allow him to release medical records even with the names redacted, thus helping the rogue federal agency to cover up what was going on inside the county jail.
