Amicus Briefs, Letters and Statements

NEFAC files and signs onto amicus briefs, letters and statements addressing important First Amendment issues. This is a listing of those documents, as well as others that may be of interest to you. While our main focus is on freedom of information concerns, we will consider supporting any amicus brief that addresses the First Amendment. If you would like to have NEFAC sign onto your brief, or to have us file one on behalf of your cause, please email our executive director for more information. Briefs, letters and statements from previous years can be viewed here: 201820172016201520142013 | 2012 | 2011

To Vermont Supreme Court Re: Digital Access to Public Court Records (April 12, 2019)

The following comments are in response to the proposed rules on public access to electronic court records. Overall, we applaud the court’s effort to provide such access to its records. This type of accessibility is crucial to an informed citizenry and an accountable government. While we recognize the enormity of moving such a large body of records online, we have several major concerns with the rules as they are written.

To Maine Supreme Judicial Court Re: Digital Court Records Access Rules (March 27, 2019)

The MFOIC [and NEFAC] strongly endorse the Court’s general public-is-public approach toward access to court records, but is concerned that (A) access be timely, as soon as reasonably possible after records are filed with the court; (B) that certain categorical exemptions to access are overbroad and unnecessary in all cases; (C) that the draft rule references an incorrect standard for granting and lifting seals on court records and that the referenced standard, if not revised, will lead to more secrecy in court records than constitutional and common law standards allow; and (D) that any fee schedule the court may adopt not become an unreasonable barrier to public access.

Food Marketing Inst. v. Argus Leader Media (March 25, 2019)

Petitioner argues that the plain text of Exemption 4, 5 U.S.C. § 552(b)(4), permits government agencies to withhold records requested under FOIA if a third party claims that the information is either kept private, or, alternatively, that disclosure might lead to “negative publicity” or “could” result in some financial harm. Petitioner’s purported textual argument, however, is irreconcilable with recent amendments to FOIA that impose a “foreseeable harm” requirement that must be satisfied before agency records can be withheld.

To Conn. Judiciary Committee Re: Bill No. 970 (March 6, 2019)

Our coalition strongly opposes Bill No. 970, “An Act Concerning the Confidentiality of Evidence Seized in a Criminal Investigation.” This legislation is written too broadly and ambiguously. It’s scope isn’t clear and could, as a result, give unilateral authority to law enforcement to keep secret all records gathered in nearly every criminal case. Even when interpreted narrowly, this legislation is unnecessary given the state’s existing police records exemption to the Freedom of Information Act. There is simply no reason for this bill other than a strong preference by law enforcement and prosecutors not to be supervised by the public.

Courthouse News Service v. Yamasaki (Jan. 29, 2019)

The First Amendment requires contemporaneous access to civil complaints upon their filing … In today’s news cycle, where stories build upon each other and are updated by the minute online, it is important that the first news stories about a lawsuit be accurate and complete, with as much information as possible derived from official, primary sources.

To U.S. Dept. of Interior Re: Proposed FOI Regulations (Jan. 28, 2019)

As detailed herein, the News Media Coalition is gravely concerned about the Proposed Rule—many provisions of which are flatly inconsistent or incompatible with the Act, and would harm journalists’ ability to gather and report information to the public about the actions of the Department and its personnel.

Doyle v. Burlington Police Dept. (Jan. 28, 2019)

Without this access, citizens must rely on the statements of public officials to learn what their government is doing … While the process of providing public records for inspection entails some monetary costs, the Vermont Legislature has time and again made the policy choice to have taxpayers bear the burden of those costs rather than shift expenses to the individual requester.

Comments Re: Media Registration and Use of Recording Devices in Vt. Courtrooms (Jan. 14, 2019)

In summary, we believe these changes are unnecessary as state courts already have adequate tools at their disposal to protect the privacy interests of witnesses and jurors. We are also un- comfortable with the court enforcing a registration process for journalists and defining who is and is not a member of the professional media — a definition that is drawn too narrowly and neglects the interests of academics, students and other researchers.