About those non-public public records

It’s Day Two of Hard Drive-gate, and I’ve got a few questions.

As you may know, the Boston Globe reported yesterday that former Massachusetts governor Mitt Romney’s office let staffers buy their computer hard drives on their way out the door, and servers were scrubbed clean, meaning there are no email records from Romney’s time in office.

Anyway, here’s what I’d like answered:

• The Globe reports that the emails are not public records, and would not be subject to a public-records request. Yet Secretary of State Bill Galvin says the emails nevertheless should have been turned over to him for filing in the state archives. Are there any circumstances under which the records could be made public? If not, isn’t this a story about nothing?
• Why wasn’t this an issue in 2008, the first time Romney ran for president? Romney wasn’t some back-of-the-pack lightweight that year. He was the most credible alternative to John McCain. Did no one ask for this stuff back then?
• Doesn’t Romney’s campaign have a point when it claims that the revelation may be a politically motivated attack by Gov. Deval Patrick? After all, it comes during the same week that Patrick slimed former attorney general Scott Harshbarger, the most prominent opponent of his cherished casino plan.

At casinos, compulsive gambling is the whole idea

The appalling decision by state leadership to build three casinos and a slot parlor in Massachusetts is a disaster-in-the-making on many levels. Studies have shown that proximity to casinos correlates with increases in crime, divorce, even the suicide rate.

And here’s another. Though compulsive gamblers may make up a small proportion of the population (between 1 percent and 5 percent, depending on which study you look at), casinos are utterly dependent on those folks coming in and blowing the grocery money. Michael Jonas of CommonWealth Magazine writes:

Just how much of the revenue casinos bring in is from the losses of those with gambling problems? One of the most thorough studies of this issue was done in 2004 in Ontario, where researchers had a sample of residents maintain diaries logging their gambling expenditures. The study, prepared for the government-supported Ontario Problem Gambling Research Centre, estimated that 35 percent of Ontario casino revenues were derived from moderate to severe problem gamblers. Such gamblers accounted for 30 percent of revenue from casino table games and a whopping 62 percent of revenue from slot machines.

Jonas also quotes Gov. Deval Patrick as saying, once again, that the legislation now hurtling through the Legislature will include money for treating compulsive gamblers. But there’s no logic to Patrick’s position. Within the casino industry, compulsive gambling is not a bug — it’s a feature, vital to its business model.

What’s taking place on Beacon Hill right now will live in infamy. Patrick’s legacy as governor will be his leading role in foisting this miserable enterprise upon the public.

Also: Harvey Silverglate writes in the Boston Phoenix about his angst over being a libertarian who opposes casinos and slots. As he notes, there’s nothing libertarian about what will take place in Massachusetts: this will be a government-run operation from the start.

If you really want to gamble, maybe we can start taking bets on which ex-legislator will be hired as the $150,000-a-year executive director of the Massachusetts Gambling — uh, Gaming Commission.

More Big Dig problems you don’t have to worry about

State officials want you to know that there is absolutely no reason for you to worry about the massive sinkhole that’s been discovered beneath a portion of the Big Dig. As a public service, Media Nation wants to remind you of other Big Dig problems — just teeny little glitches when you think about it — that you also don’t have to worry about:

• Corroded 110-pound light fixtures that could fall on your car while you’re driving through, but that have been supposedly fixed. What? Sounds dangerous? Why, state transportation secretary Jeffrey Mullan didn’t even think it was necessary to tell Gov. Deval Patrick. Mullan is now leaving state government because he didn’t get a raise.
• Leaks so extensive that they are beginning to damage the steel girders that support the Tip O’Neill Tunnel. Oops — sorry to sound like an alarmist. Our leaders want you to know that the leaks are the equivalent of the water that comes of “three garden hoses.” How can something you use to water your lawn possibly be dangerous?
• Crashing three-ton ceiling panels of the sort that killed Milena Del Valle in 2006 as she and her husband were driving to Logan Airport. Again, no problems — they’re using better glue now or something.

In Massachusetts, silence is literally golden

Deval Patrick

When state officials pay someone to go away, they often pay for that person’s silence, too. That’s what Boston Globe reporter Todd Wallack found in a review of “more than 150 large severance and settlement agreements signed by state agencies since 2005.”

More than half contained either a confidentialty or non-disparagement clause, and one in five contained both, Wallack reported in Sunday’s Globe. And the practice persists even though Attorney General Martha Coakley has ruled such clauses are illegal in most cases.

Wallack’s findings point to an unfortunate reality: Gov. Deval Patrick, despite his reformist credentials, is no more a fan of open government than his predecessors regarding information that could make him or his agency heads look bad.

As Wallack notes, it was a big deal when then-state treasurer Tim Cahill’s use of confidentiality agreements was exposed a few years ago. Now it turns out that the practice is far more widespread than anyone knew at the time.

Consider this story in context. In 2008, Colman Herman reported for CommonWealth Magazine that the public-records law was a shambles, and that Patrick — like his predecessors — had made it be known that he considered many of the executive branch’s actions to be exempt from the law,  a questionable proposition. (Note: I have contributed articles to CommonWealth, and my Northeastern colleague Walter Robinson is quoted in Herman’s story.)

Patrick was portrayed as having turned over records voluntarily despite his contention that he didn’t have to. But for advocates of open government, it’s clear that what’s needed in Massachusetts is root-and-branch reform. Anyone want to guess at the chances of that happening?

Update: Herman reports on some recent efforts to strengthen the law in a post for the New England First Amendment Center, but makes it clear that we’re a long way from true transparency.

Photo (cc) by Scott LaPierre via Wikimedia Commons. Some rights reserved.

A First Amendment hero-in-the-making

Michael Morisy

Last night I met a fledgling First Amendment hero: Michael Morisy, co-founder of MuckRock, a site where he posts public documents he obtains from filing public-records requests.

Morisy, as you might have heard, may be in trouble because of how Gov. Deval Patrick’s administration handled his request for records about how much money has been spent at various Massachusetts businesses under the federal food-stamp program.

The state complied with Morisy’s request. Then, in a classic CYA move, the administration — realizing after the fact that the release may have violated federal law — sent a letter to Morisy informing him he could be subject to a possible fine or imprisonment if he doesn’t take the information down. It was a ridiculous threat, and Morisy has refused to comply. The courts have consistently ruled that, under the First Amendment, the onus for keeping private records private is entirely on the keeper of those records, not on those who would publish them.

Nor is the privacy of any food-stamp recipients at risk. The records published by MuckRock, according to this Boston Globe story by Noah Bierman, do not identify any recipients.

It doesn’t seem likely that Morisy and his tech guy, Mitchell Kotler, are in any real trouble. In a follow-up in the Globe by Jonathan Saltzman, we learn that the Patrick administration issued a second CYA to cover its first CYA, assuring one and all that it never, ever intended to threaten MuckRock. Oh, no, of course not.

“At this point, I think the legal issue will blow over,” Morisy tells Chris Faraone of the Boston Phoenix. “But it’s still interesting, because all of a sudden people got very interested in what we’re doing.”

Still, you never know. Last night Morisy attended a panel discussion I moderated at Boston University on “Legal Liability in the Age of WikiLeaks,” with local First Amendment lawyers Jon Albano and Rob Bertsche. Bertsche, who has agreed to represent Morisy for free, made it clear that he doesn’t consider MuckRock to be out of the woods just yet.

Given the public attention this issue has received, I think Gov. Deval Patrick himself should announce that Morisy and Kotler are in no danger for posting records they received as a result of making a legitimate public-records request. Patrick should apologize while he’s at it.

Photo is from Morisy’s LinkedIn profile.

What Obama can learn from Patrick’s win

In my latest for the Guardian, I take a look at what lessons President Obama can draw from Gov. Deval Patrick’s unlikely political comeback.

Copyright, fair use and the limits of political speech

Over at Blue Mass. Group, there’s an interesting debate taking place over copyright and fair use in reaction to a new ad put together by the Massachusetts Republican Party. The ad is nothing special — it shows President Obama and Gov. Deval Patrick amid various bad-news headlines about the weak economy. What’s notable is the soundtrack: a 57-second excerpt from “You’ve Got a Friend,” written by Carole King (potential plaintiff #1) and performed by James Taylor (potential plaintiff #2).

BMG co-editor David Kravitz has done yeoman work in showing that use of the song probably adds up to copyright infringement. Under the fair-use doctrine, you can use someone’s copyrighted material without permission for certain purposes, including parody. But according to a case Kravitz found, the parody must be directed at the copyright-holder in order for it to pass muster, not at some third party or parties.

Kravitz is probably right, but I still think there’s an argument to be made (I make it here) that the ad should be considered fair use: it’s political speech, which traditionally receives the highest level of First Amendment protection; it’s not taking a penny out of either King’s or Taylor’s pockets, the most important element in the four-part fair-use balancing test; and if media corporations like Disney hadn’t lobbied Congress to extend the copyright period from the traditional 28 years (originally 14) to the absurdly long terms that prevail today, then the ad wouldn’t even be an issue.

What I find interesting in the comment thread is the degree to which even progressives have internalized talking points put forth by the media conglomerates in arguing that the Republicans are in the wrong. Frankly, there’s someone wrong with a copyright regime if it’s illegal to grab barely a fifth of a 39-year-old song in order to make a political point.

But as we know, even as technology has made it ever easier to engage in copyright, the copyright protections that media corporations demand have grown ever more draconian.

Tim Cahill’s wacky yet serious lawsuit

Tim Cahill

Tim Cahill’s lawsuit against his former political consultants is the craziest Massachusetts political story since — oh, since U.S. Rep. John Tierney’s wife pled guilty to federal tax-fraud charges involving her rambling, gambling brother who’s holed up in Antigua. Since Suzanne Bump thought she had two principal residences. Since —

Well, you get the idea. It’s been a nutty week. And the temptation is to make fun of Cahill, the state treasurer who’s mounting a hopeless independent campaign for governor. It’s as though he’s trying to outlaw politics as usual.

But let’s let this play out a bit, shall we? There are two competing explanations for what’s behind the suit, and I’m not sure we can say which is more credible at this point. Cahill is claiming dirty tricks on Republican candidate Charlie Baker’s behalf by people who were on his payroll. Cahill wants to stop the turncoats from giving confidential campaign documents to Baker, which is reasonable, even if it adds to his reputation as a figure of fun.

The Republicans, meanwhile, argue that Cahill is trying to stop the disclosure of possible wrongdoing such as the use of state employees on his campaign.

Well, now. Couldn’t both be true? If the ex-Cahill folks have proprietary knowledge of such wrongdoing, they have no business bringing it to Baker. If they think it was actually illegal, then they should take their information to prosecutors. Otherwise, they cashed their checks and they should shut up.

At times like these, I turn to one of my favorite political pundits, the Outraged Liberal, who observes: “The only winner in this bizarre but entertaining tale of political intrigue is Deval Patrick, which is obvious in the silence out of his campaign.”

Indeed, Patrick has proved to be incredibly resilient during this campaign. An unpopular incumbent in a bad year for Democrats, Patrick has run slightly ahead of Baker, long seen as the Republicans’ best hope, all year.

I still think it’s going to be difficult for Patrick actually to win re-election. But he has been surprisingly lucky in his opposition.

Even Republicans are offended by Loscocco

Benedict Arnold

Given the low standards that pass for acceptable political behavior, I’m not entirely sure why I was so offended by Paul Loscocco’s decision to bow out as independent gubernatorial candidate Tim Cahill’s running mate.

But according today’s Boston Herald, I’m not alone. “What a snake! What a betrayal!” said erstwhile gubernatorial candidate Christy Mihos. Added WRKO talk-show host Charley Manning: “In all the years I’ve followed politics, I’ve never seen someone leave a ticket like Paul Loscocco did.”

Jon Keller calls it the “final blow” to Cahill’s gubernatorial campaign. But Cahill never had a shot, and unless Loscocco is delusional, he knew that the day he joined the ticket. This race was always going to come down to Democratic Gov. Deval Patrick and Republican challenger Charlie Baker. That’s what makes Loscocco’s act of betrayal so loathsome.

Nor can you compare this to high-profile consultant John Weaver’s recent resignation from the Cahill campaign, followed by his endorsement of Baker. Consultants come and go. Loscocco is a candidate for a statewide constitutional office, joined at the hip to Cahill. The only honorable path before him was to stick it out until the end.

Perhaps the most laughable aspect is that Loscocco hasn’t ruled out accepting a job in a Baker administration, the Boston Globe reports. Well, maybe Baker will throw some sort of bone to Loscocco if he’s elected governor. But I think Baker would want to be very careful about letting a backstabbing weasel like Loscocco get too far inside the tent.

Where was Jill Stein?

I don’t understand why WTKK hosts Jim Braude and Margery Eagan would moderate a gubernatorial debate that featured only three of the four candidates. If it was their call, they were wrong. If it was management’s call, they should have refused to have anything to do with it.

If ‘TKK’s aim was to have a debate between the two major-party candidates, Democratic Gov. Deval Patrick and Republican challenger Charlie Baker, I would have fewer objections — though still some. September is too soon to start excluding anyone.

But there was no logical reason to include independent candidate Tim Cahill, who has no chance of winning, and exclude Green-Rainbow candidate Jill Stein, who also has no chance.

Not only was it unfair to Stein, it was unfair to Baker. Every time Cahill is given oxygen, he hurts Baker with the conservative base Baker needs to secure if he is to defeat Patrick this November. At the same time, nearly all of Stein’s support comes from people who might otherwise be persuaded to vote for Patrick.

She also happens to be as thoughtful and substantive as any of them, but I suppose that’s beside the point.