public records law – Media Nation

A second Muzzle Award to the Mystic Valley charter school — this time over a public records dispute

Imagine, if you will, a public school, supported by taxpayer dollars, claiming that it’s a private corporation and doesn’t have to comply with the state’s public records law. It is absurd on the face of it. Yet that’s what the Mystic Valley Regional Charter School is arguing in a case before the Supreme Judicial Court.

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According to an account by Jennifer Smith in CommonWealth Beacon, at least two of the justices appeared to be unimpressed by the Malden-based school’s claims when the case was argued at a recent hearing.

“You’re in real trouble,” Justice Scott Kafker told Charles Waters, a lawyer for the school, explaining, “It quacks like a duck, it waddles like a duck, it paddles like a duck.” Added Justice Dalia Wendlandt:

I understand charter schools were created to be independent in certain ways, to foster innovation in education and have the ability to do that in a way that the average public school does not. Good. But that doesn’t carry you to the argument that they’re not subject to the public record law.

At issue are some 10 instances in which public records were sought by a Facebook-based local news organization called the Malden News Network, Commonwealth Transparency and Malden mayoral candidate Lissette Alvarado. Smith reports that the requested information includes “corporate statements, contracts, ledgers, lease records, conflict of interest disclosures filed by board members, payments made to employees or professional services, and confidentiality and non-disclosure agreements.”

The case dates back to mid-2023, when state Attorney General Andrea Campbell filed a legal action against the school to force it to comply with the public records law. For fighting so stubbornly to conduct the public’s business behind closed doors, the Mystic Valley school has earned a New England Muzzle Award — its second. In 2017, I awarded a Muzzle to the school for discriminating against Black students by banning long braids and dreads. In 2022, the school sent a female Muslim student home because she was wearing a hijab in violation of the student dress code.

Despite the school’s reputation for academic excellence, there is clearly a culture problem that needs to be addressed.

According to Smith’s report in CommonWealth Beacon, Mystic Valley is claiming that it’s not subject to the public records law because “Charter schools, in their view, are public schools that are structured and treated in some ways more like corporations.” Among those disagreeing is the Massachusetts Charter Public School Association. Then again, Mystic Valley is one of just three charter schools that are not members of that organization.

In an editorial (sub. req.) calling for the SJC to rule against Mystic Valley, The Boston Globe observes that the school has already lost in decisions rendered by the state supervisor of records, the attorney general and a Superior Court judge. The editorial concludes: “Charter schools have been a great asset to Massachusetts families; indeed, Mystic Valley has been ranked as one of the best schools in the state. But that’s not the issue here. The issue is that the public has a right to know how their tax dollars are being spent.”

A pink-slime network is looking for ‘anti-American’ teaching materials at public universities in Mass.

*Pink-slime mold. Photo (cc) 2017 by Rachel Hahs.*

A network of more than 1,200 websites better known for publishing so-called pink slime designed to look like legitimate local news is now branching out.

Kirk Carapezza reports for GBH News that Metric Media is flooding public colleges and universities in Massachusetts with public-records requests in order to find what its founder, Brian Timpone, calls “anti-American” classroom materials. The company is also seeking to learn the number of Chinese nationals enrolled as students at those institutions.

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“There’s great public interest in what public universities are teaching students,” Timpone told Carapezza. “We want to see what they’re teaching and why.” Among the institutions that Metric Media has targeted are Salem State University, UMass Boston and Bridgewater State University.

I was one of the people who Kirk interviewed, and as I told him, I was surprised to see Metric Media taking such a pro-active role. Timpone’s various media ventures over the years have been involved in passive, money-making operations such as publishing alleged local news produced by distant employees, some in the Philippines, as the public radio program “This American Life” reported way back in 2012.

In recent years, Metric Media pink-slime sites such as North Boston News (a travel tip for those of you who aren’t from around here: North Boston is not a place that actually exists) have been publishing weirdly irrelevant slop, perhaps produced by AI. If you look right now, for instance, North Boston News features repetitive pseudo-stories on school test scores, high school sports and gas prices.

In 2021, the Columbia Journalism Review published the results of an investigation that showed Metric Media has ties to a variety of right-wing interests.

The public-records law in Massachusetts is notoriously weak, yet teaching materials such as syllabuses and reading lists at public institutions are arguably covered by it. Since I teach at Northeastern University, a private institution, it’s not something I have to be concerned about. On the face of it, I’m not sure why the two should be treated differently.

In any case, it will be interesting to see what Metric Media does with this material. And by “interesting,” I don’t mean to suggest that it will be anything good.

The Karen Read case shows why we need a shield law; plus, a State Police outrage, and Trump and the press

Massachusetts is one of eight states with the weakest level of protection for journalists’ confidential sources and materials

Prosecutors in the Karen Read murder trial are asking that a judge order Boston magazine to turn over unredacted audio recordings, notes and other materials stemming from a story about the case written by reporter Gretchen Voss that was published in September 2023.

The request raises some uncomfortable questions about freedom of the press. Kirsten Glavin, reporting for NBC10 Boston, writes that the magazine’s lawyer has argued previously that journalists have a right to protect off-the-record information. But that right — known as the journalist’s privilege — is tenuous in Massachusetts.

According to Glavin, Judge Beverly Cannone had previously granted access to audio of Read’s on-the-record interviews with Voss. Now the prosecution is seeking the full, unredacted recordings, which would include off-the-record statements by Read.

Michael Coyne, NBC10’s legal analyst, is quoted as saying that the prosecution’s strategy appears to be aimed at finding contradictions in what Read has said about the circumstances surrounding the death of her boyfriend, Boston police officer John O’Keefe. “The more information they gather, the more likely they’re going to start to uncover inconsistencies in the story and the like, and that’s all going to help them ultimately prove their case at trial,” Coyne said.

Read is accused of driving over O’Keefe while drunk and leaving him in a snowbank to die. She and her supporters contend that O’Keefe was beaten up in a nearby house and then dragged outside. Her first trial ended in a mistrial, and she is expected to be retried early next year.

The U.S. Supreme Court ruled in the 1972 case of Branzburg v. Hayes that the First Amendment does not provide for a journalist’s privilege and that reporters, like ordinary citizens, must provide testimony in court if ordered to do so.

At the state level, 49 states recognize some form of a journalist’s privilege, either through a shield law or judicial rulings. In Massachusetts, the privilege is based on the latter, as efforts to enact a shield law over the years have not gone anywhere. According to the Reporters Committee for Freedom of the Press, that places the Bay State among the eight states with the weakest protections for reporters seeking to guard their anonymous sources and off-the-record materials.

Not even shield laws provide absolute protection for the press. Nevertheless, such a law in Massachusetts is long overdue.

That will be $176k, please

In another case that raises concerns about freedom of the press in Massachusetts, Kerry Kavanaugh of Boston 25 News reports that the State Police have told the station it will have to fork over some $176,000 for records about the State Police Training Academy — and that’s just so the scandal-ridden agency can review those records to determine if they are public or not.

“Again, please note that the majority of the responsive records may be exempt in their entirety from disclosure,” the agency told her in a response to her public records request.

Kavanaugh, an investigative reporter and anchor for Boston 25, writes that the station began seeking the records following the sudden death of Enrique Delgado Garcia, a recruit who collapsed while taking part in a boxing match that was part of his training.

She also quoted Justin Silverman, executive director of the New England First Amendment Coalition, as saying:

We shouldn’t have to pay almost $200,000 to get this information. These are our tax dollars that are being spent on the state police training program. And we have a right to know whether or not that program is operating safely or whether it’s just teeing up another tragedy to occur somewhere down the road.

The state’s public records law is notoriously weak. In 2017, though, Gov. Charlies Baker signed into law a reform measure that, according to the ACLU of Massachusetts, “set clear limits on how much money government agencies can charge for public records.”

By demanding nearly $200,000 merely to screen its records to make its own determination as to whether they are public or not, the State Police may be in violation of that provision.

Kavanaugh writes that rather than paying the outrageous fee, her station is working with the State Police and has filed an appeal with the secretary of state’s office.

Journalism in the Age of Trump II

What will be the fate of journalism in the Age of Trump II? Poynter Online media columnist Tom Jones asked several folks (including me) what role the press played in Trump’s victory over Kamala Harris and what the next four years may look like. I think this observation from NPR TV critic Eric Deggans is especially on point:

The bubble of conservative-oriented media has distorted what many people even believe is fair news coverage and increased the amount of misinformation and disinformation in the public space. But I think one of the biggest problems facing mainstream news outlets now is the belief among nonconservative consumers that coverage of this election cycle let them down by “sanewashing” and normalizing Trump’s excesses. Traditional journalists who have already lost the confidence of conservative consumers are now facing diminishing trust from the news consumers who are left, which is not a great combination.

How our weak public records law is enabling a cover-up of school sports harassment

Sports builds character, we are told over and over again. And yet Massachusetts has been hit with multiple cases of racist, homophobic harassment aimed at high school athletes.

🗽The New England Muzzles🗽

The leading journalist tracking those cases is Bob Hohler of The Boston Globe, who’s reported on horrifying cases in Danvers, Woburn, Duxbury and elsewhere. Yet his efforts to dig deeper have been improperly thwarted by the Massachusetts Interscholastic Athletic Association. According to Hohler, the MIAA has refused to turn over incident reports in response to a public records request even though the secretary of state’s office has ruled that those records are, indeed, public. Hohler writes:

Details of the alleged misconduct remain untold because the MIAA denied the Globe’s request for copies of the incident reports. The denial follows a ruling by the Secretary of State’s office in November that the MIAA, despite the organization’s objections, is a public entity subject to the state’s public records law.

MIAA executive director Bob Baldwin told Hohler that his organization has chosen to ignore the public’s right to know because officials don’t want to discourage schools from reporting incidents of harassment. Yet the lesson of past incidents is that reforms often don’t occur without exposure. For instance, it was only after Hohler reported that Danvers officials had failed to respond to a “toxic team culture” on the boys’ varsity hockey team that the attorney general’s office investigated and local leaders agreed to a series of reforms centered around policies and training. Hohler’s reporting was also followed by several departures, including the retirement of School Supt. Lisa Dana.

More than anything, Hohler’s report on the MIAA this week underscores the inadequacies of the Massachusetts public records law. There are few consequences for officials who refuse to comply with the law, even when they ignore a direct ruling to turn over public documents, as the MIAA is reportedly doing with Hohler and the Globe.

According to Hohler, the MIAA “has received 50 reports involving discrimination, harassment, or bullying — nearly one a week on average while school has been in session — since the organization began requiring its 380 member schools to file discriminatory incident reports starting with the winter season in late 2021.” The public deserves to know more about those reports.

The future of the New England Muzzle Awards

This is the time of year when I would be putting the finishing touches on the New England Muzzle Awards, an annual Fourth of July feature that highlights outrages against freedom of speech in the six New England states. From 1998 through 2012, the Muzzles were published in The Boston Phoenix. After the Phoenix closed in 2013, they were hosted at GBH News.

The one constant over all those years had been my friend Peter Kadzis’ role as editor at both the Phoenix and GBH. Following Peter’s well-earned retirement, I’ve decided that last year’s 25th anniversary edition will be the last. I’ll still track the kinds of stories that I used to highlight in the Muzzles, and the MIAA story would have been a natural. But rather than an annual round-up, I’m going to write them up in real time for Media Nation. You’ll notice a weak attempt at a logo near the top of this post. I’ll try to come up with something better.

I also want to express my appreciation to GBH News for hosting the Muzzles during the final 10 years of their existence, and to civil-liberties lawyer Harvey Silverglate, my friend and occasional collaborator, for coming up with the idea all those years ago.

Salem mayor calls for the Legislature to be covered by the open meeting law

Salem Mayor Kim Driscoll. Photo (cc) 2020 by the office of Gov. Charlie Baker.

Well, isn’t this a lovely surprise on a Monday morning. Salem Mayor Kim Driscoll has written an op-ed piece for The Boston Globe calling for an end to the state Legislature’s exemption from the open meeting law — a law that requires virtually all city and town boards and many state commissions to conduct their business in public. It’s a bit too late for Sunshine Week, but we’ll take it. Driscoll writes:

If 351 cities and towns can adopt budgets, engage in policy debates, hire and evaluate staff, and create local laws — all while meeting the rightly rigorous standards of the Commonwealth’s Open Meeting Law — there is no valid reason why our state colleagues cannot do the same.

Driscoll also notes that Massachusetts is one of only 11 states whose legislature is exempt from open meeting laws.

Similarly, the Legislature and the courts are exempt from the state’s public records law, and a succession of governors, including Charlie Baker, have claimed that their immediate staff is exempt as well.

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Last fall, our Northeastern journalism students contacted all 257 candidates for House and Senate seats and asked them whether they would support ending that exemption. Sadly, only 71 responded despite repeated emails and phone calls; but of those who did respond, 72% said they favored applying the public records law to the Legislature.

As with the open meeting law, Massachusetts is an outlier: it is one of only four states whose public records laws do not cover legislative proceedings.

The central argument Driscoll offers is unassailable. If cities, towns and state agencies can comply with the open meeting and public records laws, so, too, can the Legislature. It’s long past time to drag the proceedings of the Great and General Court out into the sunlight.