Yes, it is already June! This is the month when a young person’s fancy turns to thoughts of love, but municipal officials think only of closing out the year’s budgets. We hope you’ll love all the exciting news in this month’s Miyares and Harrington LLP newsletter.

This month's newsletter features:
  • Data Mining and Public Records Requests

  • Compliance with Air Quality Standards is Not Necessarily Sufficient for Grant of Special Permit

  • First Amendment Does Not Limit Operators of Cable Access Channels

  • Rapid Fire Updates: New IGR’s – Lease Purchase Finance Agreements, Other Post-employment Benefits Liability Trust Funds; Policy Statement on Sale of Hemp Products; New MEPA Public Comment Portal

  • Trivia!

Data Mining and Public Records Requests
As government databases of information proliferate, so do the considerations when responding to Public Records Lawrequests for those data. The Supreme Judicial Court’s recent decision in Boston Globe Media Partners v. Department of Public Health provides welcome guidance on how to respond to requests for electronic compilations of data.
 
In this case, a reporter requested all of DPH’s electronic birth, marriage, divorce, and death records, a dataset affecting millions of people. Those records appear in many DPH databases, some exempt from public disclosure by statute, while others are not. Complicating matters, the same information often overlaps bothtypes of databases, and some overlapping information may also be viewed (but not reproduced) through DPH’s public computer terminals. Further, those data sometimes change. Knowing of those changes through repeated record requests can reveal statutorily-protected information – for example, comparing old data with new may reveal a medical intervention for sex reassignment (exempt under M.G.L.c.46, §13).
 
DPH denied the request, even though it was limited only to data available from DPH’s public computer terminals, asserting protection from disclosure under Exemption A (statutory implication) and Exemption C (unwarranted invasion of personal privacy).
 
Against this thicket of issues, the SJC left its ultimate decision for another day, sending the case back to a lower court for more fact-finding. But the Court still issued a lengthy, informative 47-page decision with four key takeaways:
 
  • First, the SJC was concerned with the ever-changing nature of these data. Observing that “today’s current information may be tomorrow’s record protected from public view,” the SJC rejected analyzing requests in a vacuum. Public entities must consider whether comparing the results of many Public Records Law requests over time will reveal confidential information.
 
  • Second, when applying Exemption A, the SJC differentiated between data and databases. Even if stored in a database exempt from disclosure, the same information may still be a public record if it is in another repository that is subject to a public records request. Public entities must therefore carefully consider this distinction as it applies to their own repositories.
 
  • Third, for Exemption C, the SJC reaffirmed that individuals’ privacy interests are not limited to “intimate details of a highly personal nature.” Rather, public entities must consider other factors as well, and the SJC expressly recognized a new factor previously accepted by the United States Supreme Court: in certain circumstances, “there is a greater privacy interest in a compilation of personal information than in the discrete information that a compilation
 
  • Finally, the SJC said for the first time that public interest considerations relevant to Exemption C extend beyond the public’s right to know whether public servants are acting efficiently and in conformance with the law. According to the Court, where a requestor articulates a specific public interest that is unrelated to government operations, a public entity must also weigh that interest against the potential privacy intrusion of the request to determine whether the exemption applies.
 
Boston Globe Media Partners is important reading for any public official who responds to public records requests. It is a useful, but nuanced, decision with a practical bottom line: Public record requests to disclose compilations of electronic records often implicate unique and difficult considerations, distinct from other types of requests.

Compliance with Air Quality Standards is Not Necessarily Sufficient for Grant of Special Permit
In a win for challengers to the grant of a special permit when the proposed use raises air quality concerns, the Appeals Court, in Fish v. Accidental Auto Body, Inc., held that an auto body shop owner had not carried its burden to establish that the “proposed use…will not adversely affect public health or safety…[and] will not significantly decrease…air quality” as required by the Mashpee Zoning Bylaw.
 
The proposed auto body shop, which would have been built approximately 74 feet away from the plaintiff’s property line, was proposed to have a spray painting booth fully enclosed within the building. Some of the paint to be applied in this booth would contain isocyanates, which the trial court judge noted are potentially harmful to health. The judge found that, although the auto body shop would employ the best available filtration system available and locate the vent as far away from the plaintiff’s property as possible, two percent of the isocyanates would nevertheless escape.
 
At trial, the plaintiff’s expert toxicologist testified that, although isocyanates quickly degrade once airborne, they would reach the plaintiffs’ property before being rendered harmless and would very likely pose health risks. Accidental Auto Body did not present any evidence contradicting these assertions. Nonetheless, the judge found that state and federal regulations governing auto body shops could be relied on to protect public health; moreover, he added, the plaintiffs had purchased homes adjacent to an industrial area, and the alleged impacts “must be seen through that lens.” He concluded that there would be no significant adverse impact.
 
The Appeals Court disagreed and annulled the ZBA decision granting the special permit. Its decision is significant for two reasons:
 
  • First, the Appeals Court found that the lower court judge wrongly put the burden of proof on the project opponents, rather than the applicant auto body shop. While this is not the only time a court has reached such a decision, this case stands as a clear reminder of this principle.
 
  • Second, the Appeals Court refused to accept that compliance with Federal and State environmental regulations was sufficient to demonstrate compliance with the special permit requirements. The Court found it significant that the Town had chosen not to declare that the standards relating to “public health or safety” and “air quality” that an applicant must meet in order to qualify for issuance of a special permit are satisfied by compliance with Federal and State laws and regulations. Where the auto body’s paint shop would result in the release of harmful molecules, the applicant had the burden to produce evidence that those molecules will not adversely affect public health or safety and will not decrease air quality. A blanket assertion regarding compliance with regulations, was deemed not to be sufficient to meet that burden. However, the Court noted an important caveat: “The question whether the bylaw is preempted by State law was not raised below, and we express no opinion on the matter.”

First Amendment Does Not Limit Operators of Cable Access Channels
The Supreme Court of the United States, in Manhattan Community Access Corporation v. Halleck, held that the operation of public access channels on a cable system is not a traditional, exclusive public function and, as such, the First Amendment does not restrict an operator’s exercise of editorial discretion over the speech and speakers on public access channels.
 
New York state requires cable operators to dedicate channels on their cable systems for public access. Public access channels must be free of charge and distributed on a first come, first served basis. The law also requires cable operators to operate the public access channel unless the local government elects to operate the channel itself or designates a private entity to operate the channel.
 
New York City had designated a private nonprofit corporation, Manhattan Neighborhood Network (MNN), to operate Time Warner’s public access channels in the city. Two producers submitted content to MNN. However, after MNN received numerous complaints, it pulled the content off the aid and temporarily suspended the producers from using the public access channel. The producers subsequently sued, asserting that MNN impermissibly infringed upon their First Amendment rights by prohibiting their content.
 
Generally, the free speech clause of the First Amendment does not prohibit private abridgement of speech. However, where a private entity performs a traditional and exclusive public function, it qualifies as a state-actor and is subject to First Amendment constraints on its editorial discretion. The central issue in the case was therefore whether MNN exercises a traditional, exclusive public function when it operates the public access channels on Time Warner’s cable system. The Court said no.
 
The majority also dismissed an argument that the First Amendment applies because MNN provides a public forum for speech. The Court noted that, while a public entity may be constrained by the First Amendment in the operation of its public forums, private entities who provide a forum for speech are not transformed by that fact alone into a state actor subject to the First Amendment. Pointing to grocery stores putting up community bulletin boards and comedy clubs hosting open mic nights, the Court refused to limit private property owners’ ability to restrict speech.
 
The Court also found that the City did not hold any property interest in the cable system, which would have converted the cable channel into a public forum. However, in an opinion written by Justice Sotomayor, the dissent disagreed, finding the majority’s view of the cable licensing structure to be overly myopic. Justice Sotomayor noted that the central question is whether the channels themselves are purely private property. The dissent argued that, because the government holds a property interest in the public access channels, the channels constitute a public forum subject to the First Amendment.

Rapid Fire Updates:
New IGR’s
 
The Division of Local Services has issued two new Informational Guideline Releases, one on Lease Purchase Finance Agreements and one on Other Post-employment Benefits Liability Trust Funds.
 
Sale of Hemp Products
 
The Department of Agricultural Resources has issued a Policy Statement Regarding the Sale of Hemp-Derived Products. It permits the sale of some hemp-derived products but prohibits others. As one example, products containing CBD are prohibited.
 
New MEPA Public Comment Portal
 
MEPA has launched a new Public Comment Portal. The portal will permit viewers to search for projects under review, submit comments, and upload documents.


Trivia!
 
Question: Our own Ray Miyares recently visited the Hemingway Home and Museum in Key West and had the pleasure of meeting the house’s population of polydactyl cats. Who gave Hemingway his first polydactyl cat and what is his connection to Massachusetts?
 
Last issue's question: What common lawn ornament was created in Leominster, MA?
 
Answer: You got it, the venerable pink flamingo, the brainchild of Donald Featherstone! Can a lawn have too many pink flamingos?
 
Winner: Many, many correct responses; I guess we Bay Staters are proud of the local invention. But the first correct response was received from Bill Shaughnessy, Wellesley’s Water and Sewer Superintendent, so congratulations!


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THIS NEWSLETTER MAY BE CONSIDERED ADVERTISING UNDER MASSACHUSETTS SUPREME JUDICIAL COURT RULES. This newsletter is intended for clients and friends of Miyares and Harrington LLP. It provides general information about legal developments and should not be used as a substitute for professional advice on your particular legal situation.

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