Open Meeting Law

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Video: Public ownership of public information

Bill: Public ownership of public information

Host:

Douglas Quattrochi - Doug

[Start 0:00:00]

Presenter: So here's the bill itself. There are “Whereas” clauses. These aren't customary in Massachusetts bills. Bills are usually—and I teach a legislative drafting course by the way, and the way I explain bills to students is it's usually an order, a bill is usually simply a set of instructions telling somebody to do something. You may recall President Johnson said once upon a time being president is basically telling people to do things that they ought to do without you having to tell them, and being a legislative drafter is a little like that. You're telling officers of government to do things that they should be doing anyway.

Usually a bill is a simple set of instructions telling a particular officer in government to do a thing, to perform an activity and if they don't do it, you can hail them into court and have a judge tell them to do it. We don't usually have these “whereas, ” these preparatory clauses preparatory language saying this is how things ought to be this is the problem. But here it matters; these are educational bills. They have a didactic educational purpose as well as just being functional.

The “whereas” is talk about our rights and our purpose as a polity, the people of the Commonwealth have the exclusive right of governing themselves as a free sovereign independent state as set forth in Article 4 of the Declaration of Rights, and the bill also mentions that in order to be that free sovereign state, you need liberty of the press and that in turn depends on access to information, so these whereas clauses there are a few more of them explain why we need this bill.

“Whereas the Supreme Court of the United States—”

And I won't read this this whole thing, it's on the screen. I hope that you will read along as I’m as I’m talking—

“Whereas the Supreme Court of the United States has enunciated this doctrine called the Government Edicts Doctrine,” and it simply says that legislators do not own the laws that they make in our name. They can't claim copyright in the laws. This came up quite recently . In the last couple of years, there was a case about this. It involved the State of Georgia, if memory serves, and the Supreme Court of the United States made abundantly clear again that the Government Edicts Doctrine means that legislators do not have copyright in the laws. That would be crazy, wouldn't it?

Well, legislators do claim copyright in the laws, believe it or not. Here in Massachusetts, if you go to the Massachusetts legislature's website, you will see a copyright notice. So this whereas clause refers to the fact that in Massachusetts right now, MaLegislature.gov says, “Copyright 2021 the General Court of the Commonwealth of Massachusetts,” or just the General Court of the Commonwealth of Massachusetts, so the Commonwealth's general court our legislature is claiming copyright in the statutes that the legislature enacts for we, the people.

First of all, that's just a misstatement of the law. The legislature does not own the copyright and it's important for us to remind the legislature that it must operate within the law. Our state reps and the senators are not above the law, and the other aspect of it is this is actually a criminal offense that the improper assertion of copyright in public domain works is a criminal offence something called the Federal Copyright Act, so we really don't want our legislature to be engaged in this level of criminality.

“Now therefore be it resolve that…” so this is where we get to the bill itself. Chapter 66 of the General Laws, that's the public records law, is amended by adding this following section, and this section says—

Excuse me while I move things around my screen a bit so I can read the text properly. I can't move my picture.

The Legislature disclaims, abandons, relinquishes, and waives copyright in the works of the legislature and including works created prior to the effective date hereof and irrevocably transfers and dedicates all such works to the public domain and going forward checking the time. Legislature shall not claim copyright in any future works and it will put a notice on its future works stating that, “The work is irrevocably dedicated to the public domain.

[0:05:00]

What would this do? This would restore the idea not just that the legislature has to operate within the law, it can't go violating the criminal provisions of the Federal Copyright Act, but it also restores this idea that they work for us. It restores our ability to get at public information that is generated on our dollar in our name, and at a different level, at a mental level it sort of removes the chilling effect. If you see a copyright notice, you may not realize what's happening but you are thinking I think that if you copy this you're going to get in trouble in some way. This belongs to somebody else.

When you see a copyright notice on the Massachusetts Legislature's website, you should not worry. Even at the back of your mind you should never worry that the state is going to come after you and prosecute you. It will sue you. You'll make you run up legal fees defending yourself just because you've copied something that actually belongs to you. You shouldn't be fearful of state government in this way.

Unfortunately one of the effects of the last year or so with the emergency has been that we've become very acclimated to following new and sometimes apparently arbitrary rules that issue forth from Beacon Hill. I’m not saying that many of those rules aren't necessary for public health, but we've become unhealthily accustomed to a degree of deference that is not healthy in a self-governing republic of free people, so this helps restore that concept that we are a self-governing republic of free people and they work for us not us for them.

This section shall be construed liberally for the accomplishment of its purpose, which is to encourage freedom speech of the press.

A quick aside about legislative drafting including a liberal construction clause is helpful when you have a statute that may have some ambiguity in it. You want any ambiguity construed to affect the purposes of the provision as opposed to very, very narrowly or very, very strictly so this is telling judges how to construe the statute in the event that there's some ambiguity in its words.

There's a similar statute, Chapter 151B, the Anti-Discrimination Statute has a similar provision and liberal construction clause that does this in order to ensure that if there's any doubt as to the meaning of the statute, the court should construe it liberally, expansively generously to effectuate the purposes of the legislature. Of course the disadvantage of Chapter 151B is it doesn't say what the purpose of the study actually is, not scraping the law. Here said what the purpose of the statue actually is, so when you tell judges to construe something liberally to achieve its purpose, it's good to tell the judge what the purpose is.

The next part of the bill would bring the legislature within the scope of the Public Records Law, so here's the text of section two of the bill, which is I guess full of a bunch of double negatives of this check we're repealing part of the statute. If you're not familiar with the statute, it looks a little confusing so what I’ve done is at Doug’s suggestion, I’ve brought in a redline version to give you a sense of what the statute would look like after it's amended.

If we find allies in the legislature who will work with us and make this law, this is what the new law, the new section 18 of the Public Records Law would look like. It would remove that exception from the legislature. It would delete the exception that the legislature has. It would leave in place that other exemption in the same section that refers to commissioner of veterans’ services, those things can still be not public records, but records of the legislature shall be.

Moving straight along to the next one. I’ll pause for a moment just to see whether there are any—

Doug: Yes, there was one question chatted. “Would the bill include so given that you've subjected the legislature to the open meeting law, does this mean you can get written testimony for and against bills? Right now you kind of have to badger committee staff to see that.”

Presenter: Yes you could file a public records request for all testimony that the committee has received. That would be a big advantage and also minutes of your recorded votes so you'd be able to see testimony and you'd be able to see the minutes if the committee decides to keep records of its meetings and they don't have to. There's nothing in the law that says legislative committees have to keep minutes, but if they do our law, if it became law would require them to hand that over upon request and votes. Who knows who votes how in a committee.

[0:10:18]

It’s completely up to the committee itself to adopt rules that say whether there will be recorded votes and of course like the legislature itself, they can change the rules pretty much whenever they wish, so this law would enable us to get that kind of information, which is very, very helpful.

What one thing I should mention is the governor's office and the executive branch agencies, when we do public records requests then we sometimes find very helpful interesting information like we did a public records request about the run-up to the enactment and renewal of Chapter 65, The Eviction Moratorium, wanted to know who's in the room virtually and literally and pushing for and having a seat at the table when the governor was deciding whether to put his name to the eviction moratorium, the extension thereof.

Well, MLRI, Massachusetts Law Reform Institute, was there. We have the emails so that's something we didn't know for sure beforehand. Now we do. That's a very helpful thing to know that Mass Law Reform Institute was there actively lobbying and advocating for the eviction moratorium and working with people in the executive branch and the governor's office and EOHED in order to draft what became the law and the regulations pursuant thereto.

Any other question?

Doug: All right, thank you. No, I think that's it.

Presenter: Okay.

[End 0:11:55]

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