Return of the Open Meeting Law debate

Last summer, considerable attention was given the Massachusetts Open Meeting Law and its potential applicability to the BRA's Harvard and Boston College Task Forces (see coverage by the Globe, TAB, and Mike Pahre 1, 2, 3). At the time, the main issue was whether or not the Task Forces could meet with the BRA and/or universities without members of the general public in attendance.

At the time, the Suffolk County District Attorney's Office said the Open Meeting Law did apply to these Task Forces and the public must be allowed to attend all meetings that do not fit the law's narrow definition of "executive sessions". The BRA disagreed, stating that the Open Meeting Law does not apply to these advisory groups. Regardless, the Harvard Task Force and, I believe, the BC Task Force have allowed the public to attend all of their meetings since.

This issue of the Open Meeting Law has returned this week because, on two occasions, people have been forbidden from videotaping public meetings held by the BRA. On Monday, I was prevented from recording the BRA's Charlesview meeting. Last night a Boston University journalism student was prevented from recording the Harvard Allston Task Force meeting.

The law is clear that "a meeting of a governmental body may be recorded by any person in attendance by means of a tape recorder or any other means of sonic reproduction or by means of videotape equipment". The disagreement between City Hall and the DA seems to be on what exactly defines a "governmental body".

According to Attorney General Martha Coakley:

"The purpose of the Open Meeting Law is to eliminate much of the secrecy surrounding the deliberations and decisions on which public policy is based. It accomplishes this purpose by requiring open discussion of governmental action at public meetings."

This statement seems quite consistent with Article 80 of Boston's Zoning Code which regulates the procedures for both Large Project Review (the subject of the Charlesview meeting on Monday) and Institutional Master Plan review (the subject of the Harvard Task Force meeting). It states:

"these review requirements also provide important opportunities for community
involvement in development review activities that affect the quality of life in
the City."

Similarly, the City's "A Citizen’s Guide to Development Review under Article 80 of the Boston Zoning Code" states that "Citizen participation is vital to the success of development review under Article 80."

The unnamed attorney interviewed by the TAB cited the case of Connolly vs. School Committee of Hanover as supporting the position that Task Force meetings are not subject to the Open Meeting Law. However, the details of the Connolly decision differ significantly from the Article 80 process:

1. The Connolly decision states that

   "Of special significance is the fact that the superintendent, because he is clearly not a "governmental body," could, by himself, have accomplished the task of screening and interviewing candidates in a closed session, entirely free from the requirements of the open meeting law...The selection committee does not fall under the statute because it is not a committee of the town of Hanover but a committee of the superintendent. "

   But decisions about development proposals are not decisions that can be made by any single person. These decisions are ultimately made by the Board of the Boston Redevelopment Authority who could not, by themselves, legally accomplish this task in a closed session.


2. Another issue in Connolly that led to the decision that the Open Meeting Law does not apply is to that situation is that

   "the selection committee was not created pursuant to any statute or by-law, but was appointed informally by the superintendent. This factor alone sets the selection committee apart from other entities considered to be "governmental bodies" under the open meeting law, almost all of which are creatures of statute, ordinance, or by-law"

   A clear difference is that the BRA Task Forces (also known as Impact Advisory Groups) are not informally appointed on the whim of an elected official. They are a formal part of the Article 80 process required by the Mayor in "An Order Relative to the Provision of Mitigation by Development Projects in Boston"

It is hard to understand why the City, whose own governing regulations speak so strongly about including the public in review of development projects would seek to limit public participation and public awareness about what happens at public meetings.