-: SJC-13601,
Department of Children and Families versus Mother et al.
(pages rustling)
-: Attorney Lamanna. -: Good morning.
May it please the court,
my name is Jennifer Lamanna
and I represent the appellant, LCMedia.
We must not allow public institutions
to hide behind the privacy rights of individuals
in order to evade public scrutiny and critique.
In this particular case
and under the specific facts of this case,
the lower court judge abused her discretion
by failing to properly balance the privacy interest,
whatever those may remain for this family,
against the public's right
to know exactly what happened in a proceeding
that led to a child being placed in the custody
of her eventual murderer.
LCMedia came before the lower court
seeking using the Uniform Rules of Impoundment standard
and alleging that he had good cause
to seek release of the specific audio
that resulted in the hearing
that granted custody to the father in this matter.
While it is certainly true that,
pursuant to its statutory mandate,
the Office of the Child Advocate
produced a detailed report,
it is unquestionable
that that report itself
was a summary of information
that the OCA determined to be relevant and necessary
in order to inform the public.
-: So I agree with you
that obviously the most important consideration
is trying to figure out
what went terribly wrong here.
Is there anything that shouldn't be turned over?
I mean, are there any residual privacy interests
that we have to take into account here given that?
I mean, I'm trying to understand,
is there anything that should be impounded in your view?
-: Well, as you're aware, Justice Kafker,
we've had no access whatsoever.
So I can't specifically point
to a particular statement by counsel
during that proceeding
that would reveal something
that is not already out in the public domain.
But as I'm sure the justices are aware,
when we brought this motion,
we specifically requested
from the lower court judge
that she exercise
the broad discretion that she has to limit,
if there is indeed information
that the public does not already have,
that that could be limited
when the disclosure is made.
So names could be redacted.
This is a case that, it goes without saying,
has had enormous public exposure,
both nationally and internationally.
Wolohojian: How does that factor into?
I didn't see that as something to be considered
in the factors the judge was to consider.
-: Thank you, I would say it has to be considered
because the nature of the public interest
is part of the standards under the UROP.
-: But the nature of the public interest may be,
but the quantity of public interest that's already occurred
doesn't seem to me to be coterminous
with that first factor.
-: It's certainly not a deciding factor.
The fact that you could have an equally serious case
that for some reason had not received
the same level of press attention,
and I think you could still meet
all of the other factors.
-: Okay, so again,
why is the quantity of attention relevant?
-: I think it's less the quantity of attention,
but the content of the attention
that goes to the privacy interest
that Justice Kafker was just questioning.
-: And by that do you mean just the subject matter at issue?
-: Well, the subject matter at issue,
but certainly the fact that it appears clear
that the underlying statutory scheme
for privacy under Chapter 119
is to protect children and families
involved in these type of proceedings
from the stigma attached to having parents
with substance abuse issues,
parents who have perhaps performed
appalling acts to children,
and to protect them from that.
In this particular case,
A, the mother herself
has freely discussed the substance abuse issues
that led her to lose custody of her child.
The father, who one would think
would have some objections to disclosure,
has not objected to disclosure at all.
The Department of Children and Families,
while they argue strenuously
against any sort of waiver
of any of the privacy interests,
I would respectfully suggest
that the design of the statute
is not to protect the government agency that's operating.
-: Do they have any privacy interests, the DCF?
I mean, I understand how the mother
can have a privacy interest,
the father, the children,
and maybe even the adopted siblings,
but DCF has no privacy interests, right, whatsoever?
-: I agree with that, I agree with that completely,
Justice Kafker.
While the department has, in this case and in others,
I've asserted that the names
of the social workers, for example,
should be kept private
because they're considered under Section 38 of 119
names of the parties.
I dispute that,
I don't think the names of government actors
in the course of their public employment
constitute a privacy interest.
Certainly none of these proceedings
involve personal facts
about the individual social workers,
it is-- -: Well, they do
in the sense that the Office for Children
finds fault with DCF.
I'm not sure the individuals they find fault with, right?
But that report finds fault with DCF, correct?
-: Yes, that report-- -: And particular individuals
of DCF?
-: Well, the report specifically criticizes
counsel for DCF
for their lack of legal argument
and motions practice
in terms of highlighting the department's position
in that case.
So I suppose technically that's a specific individual at DCF
as opposed to the agency as a whole
that would be identified.
-: So they might have some privacy interests,
or maybe not, I don't know.
-: I would certainly hesitate to suggest
that a government employee
who by another oversight agency
has been accused of not having performed their duties
diligently and appropriately
has a privacy interest
in protecting public exposure.
That's exactly how the public and the press
and the legislature
inform themselves over what reforms are necessary.
And I wish to be clear, of course,
that this is a case based on these facts,
just as MC requires
that there must be a factual analysis
of this specific case.
We are not seeking to reform the entire system,
we are seeking to inform the public
and the press and the legislature
who has been asked by the OCA report
to consider a number of recommendations
that would completely alter, for example,
the child-directed advocacy model
that currently exists for CBCS.
We are taking the position
that the OCA report,
while lengthy-- -: Well, you are seeking
to reform the system, right?
That's a big part of your brief
is that you feel the investigation here
will improve the system
and correct the errors that were made, correct?
So that we don't do this ever again,
or we do whatever humanly possible
to avoid doing this again?
-: There are systemic changes
that need to be made.
There are seismic shifts that need to happen
in the entire juvenile court model.
There's no question about that.
But this specific case,
nobody knows,
not the legislature,
not anybody outside of the parties themselves and the OCA
knows what exactly happened
during that hearing
that resulted in the court
granting custody.
And the OCA-- -: Is that
the extent of your request at this point?
'Cause I thought you were requesting,
there was an August, 2014
temporary custody proceeding,
there was a July 15th trial, 2015,
December, 2018 hearing,
where the judge issued
the request for an expedited interstate compact
on the Placement of Children report,
and then there is the February, 2019 review.
Which of those four,
or all of those four,
what are you looking for?
-: My client initially filed his motion, pro se,
but was specifically seeking access to the audio
for the February, 2019 proceeding.
-: Okay, and that's the limit of your request at this point?
-: At this point, and again,
the judge has given broad discretion
to craft an order that shields
any potential private information
that may still be out there.
I don't know what it is.
I don't know if it exists. -: But let's go back one.
I mean, you're alluding to the judge's broad discretion
to craft whatever parameters might be necessary,
but if you go back a few dominoes,
the judge has discretion
to allow your client's request for access or not.
And that is subject to an abuse of discretion standard.
You started off your argument
by saying, "The public's right to know."
So there's really not a right to know here,
there is a process
by which you can seek to have some access.
And the judge, my concern here is,
you have an abuse of discretion standard,
there are certain factors that were weighed
in ways that you perhaps disagree with,
but does that rise to the level
of an abuse of that judge's discretion
or are you asking us
to substitute our judgment
for the trial judge's judgment?
-: I am not asking you to substitute your judgment.
My suggestion is, is that the lower court judge
did abuse her discretion in two specific ways,
in a number of ways that I take issue with,
but two that I think are quite specific.
First, there is no real analysis
in the judge's decision
of the actual privacy interests at stake here.
There is a passing reference
to perhaps the privacy interests
of other children that the mother may have.
And of course, everybody,
while arguing this matter below,
kept referencing Section 38 of Chapter 119,
which says, "It shall be unlawful
to publish the names of parties
to these proceedings."
Mothers, subsequent children are not parties
to these proceedings,
so that would not have protected them.
So the judge made no specific finding
as to what privacy interests remained
and how those privacy interests
would be affected by disclosure.
I believe that was an abuse of her discretion,
she was required to do that.
I would further add, Justice,
that one of the other things
the judge was supposed to do
was to balance the interest at stake
and-- -: This is the second way
the judge? -: Yes.
-: Okay. -: Yes.
And the second, the judge was required
to evaluate the constitutional rights
that were at stake here.
And I think there cannot be an argument
that state-conferred confidentiality via statute
trumps the United States Constitution.
And the court in this case
specifically dismissed any idea--
-: What constitutional right are you relying on?
Because you concede in your brief
that you cite a bunch of criminal cases,
which is a very different calculus
than a civil case here.
So what constitutional right are you relying on?
-: Well, I would first say,
Richmond News is the first one
that comes to mind, of course.
Richmond News did involve a criminal case,
but as I'm sure Your Honor is aware,
throughout the decision making,
there were a number of concurrences,
the justices specifically keep going back
to the First Amendment and to the Fourteenth Amendment.
They do not rely on the Sixth Amendment.
And then there's a line of case law
from that-- -: But criminal cases
historically are open to the public,
whereas these cases are not.
-: These cases are not
historically open-- -: So can you
address for me
why that analysis doesn't matter
in your estimation?
-: I am not suggesting that, like criminal cases,
every juvenile court case
should be open to the public.
I'm not asking for a blanket rule
that applies in criminal matters
to be-- -: No, but you're arguing
on the constitutional prong
of that Rule 11 analysis.
And I'm wondering why you're equating access,
or the right to access,
to these proceedings,
which historically has not been allowed
with those in the criminal proceeding.
-: So there is an extensive line of cases
referring to both civil and criminal matters
that discusses the fact that the right to speak
implies a right to listen,
the right to freedom of the press
implies a right to gather information.
There is an excellent quote by Justice Stewart
in his concurrence in Richmond,
where he essentially says,
"We don't expect our public institutions to be fallible,
but it's extremely difficult for the public
to understand that which it is not allowed to observe."
I think particularly taking into account
the UROP factors that exist here,
there is a constitutional right of the press to access--
-: How do we measure that community interest prong of MC?
It seems to me that this is a case
that would, of course, ordinarily be private and unsealed,
and what makes this case different
when you go through the factors
is the level of community interest.
How is a judge to measure that?
-: Well, it is certainly within the judge's discretion
to do that.
And I think that that's part
of the balancing test-- -: But how?
-: Well, I think that's part of the balancing test
that didn't occur here,
is to say, "So what is the level of community interest?"
In this case, the level of community interest-
Gaziano: Is it if the local paper--
-: is incredibly high?
-: I'm sorry? -: Is it if the local paper
wants to write about it or is it?
How is this measured?
How is it applied?
-: I think it requires a number of different factors.
One of which, for example,
is it just the local press,
is it "The Lowell Sun" reporting on this,
or is it "The Washington Post?"
Is it a number
of different media outlets? -: That shouldn't matter.
Shouldn't whether it's "The Washington Post"
or the local newspaper?
It's gotta be based on the fact
that there's been a terrible governmental error here, right?
That's what provides the constitutional,
this is a different case,
it's not an ordinary juvenile case.
There's been a terrible error
that's resulted in a death of a child.
And the public has a right to understand that, right?
It's not whether "The Washington Post"
or the wool paper is interested.
It's the government's made a big mistake here
and we gotta figure out why.
-: Oh, I agree with that,
but I was specifically responding
to Justice Gaziano's question,
"Does it matter if it's just the local paper?"
And I'm saying--
Kafker: Why should it matter if it's national or local?
-: If no one knows about it, respectfully,
if no one knows about it,
except for one member of the family
who attempts to get public attention
and that person seeks to generate public interest
to highlight this horrific act that occurred,
that could be sufficient
in terms of community interest,
but it-- -: Could I?
Just wanna make sure,
you keep saying that there were things
that the trial judge didn't do.
So why isn't this more of a case for remand
than it is for this court to order access?
You keep saying, "She didn't balance the community interest,
she didn't balance the constitutional concerns,"
all of these different things
that you claim the judge did not do.
Why isn't this a remand case then?
-: It could be a remand,
that's certainly within your authority to do,
to remand and to ask the lower court judge
to actually balance the freedom of access
that we are alleging
is part and parcel of the freedom of the press
that is protected under Article 16
and the First Amendment.
You could certainly remand it to her to do that.
But I think the facts just within the four corners
of the judge's decision
are also sufficient for you to determine
an abuse of discretion was made
and a clear error was made,
and issue a different decision.
-: I don't know if I follow that,
because if I marry Justice Wolohojian,
Justice Kafka and Justice Gaziano's concern
about what's the limiting principle here?
Because there are a bunch of these different factors,
but you seem to be arguing
that the first among equals
is how much people wanna know.
And there are plenty of awful cases
where children get hurt
or they die in DCF custody,
and so what makes this case different,
that this is the case
that we should say you get access
because this is the one everybody wants to know?
But if it just happens to be the next tragic case
that no one knows about,
that somehow that doesn't factor in
and militate in favor of disclosure,
but this one does,
and this factor is more pronounced
and more dense than all of the other factors.
How is the judge supposed to do that?
-: Well, this case is profound.
The Office of the Child Advocate
specifically found there are certain cases
that come before the Office of the Child Advocate
in which it is determined
the public has a right to know,
the case cries out for further explanation.
And the OCA in this case took that,
took that, assessed it with that same level of seriousness
that we are assessing it with,
and determined that the public had a right to know.
And I wish to be clear,
I am in no way implying any bias
on the part of the OCA,
or that the OCA was in some way trying
to shield a government agency.
But when the public and the press
and the legislature are informed
by a single individual's distillation
of what they considered to be the important facts,
that is the opposite of the right of free access.
That is a way to infringe upon the free press
as opposed to a way to ensure that it is robust
and given the level of the ability
that a public requires
in order to be informed
and in order to inform their own legislature.
Wolohojian: Justice Gaziano may I ask a question,
even though the time is? -: Please.
-: Would you like to briefly address
the issue of how your client is an interested party?
-: Certainly, as I'm sure Your Honor is aware,
the definition of interested party under Rule 11
is quite narrow.
It simply says, "A non-party,
someone not a party to the lower proceeding
who expresses an interest
and then explains who they are."
So it's not a clear standard to meet.
But my client, as a member of the press,
is certainly interested in his role
as a member of the press.
-: Of an interest in a colloquial sense,
we're looking here in a legal sense,
a legal interest in the case, no?
-: Rule 11 does not say that.
It says-- -: Do we have any cases
that would support your definition of interest,
interested party?
-: Well, I think the press is always considered
an interested party
when it comes to the workings of government
and the workings of our government institutions
that the press has consistently been granted access--
-: An interested entity,
but maybe not a party, right?
I mean, these words have meaning.
Jennifer: Absolutely.
-: They have legal meaning.
I'm trying to see-
-: Is the definition though- -: if you fit into that.
-: limited to interested party,
does the rule refer to interested party
or interested something else?
I can't-- -: Rule 11 says,
"An interested person."
It says a, if I remember-- -: I thought it was,
"Interested non-party."
-: "An interested non-party," that's right.
So it doesn't have to be a party.
It has to be somebody who is able to satisfy the judge there
appearing before by their affidavit
and by the facts that they include
that they have an interest.
And the interest that was put forward here
is by LCMedia.
We are a journalist,
we are deeply invested
in exposing concerns and problems
with the Massachusetts juvenile court system,
and we are seeking access in this specific case,
which has already generated
a considerable amount of public interest
and a considerable amount
of contradictory information,
and we ask for access for that reason.
-: Should the definition be different
for parties versus non-parties?
I mean, it should be different than the test
that Justice Gaziano laid out in,
I forget the name of the case,
for parties?
-: In MC? -: Yes.
-: So it is interesting that Justice Gaziano's opinion in MC
specifically refers to the fact that you use this rule,
you can use Rule 7,
and it's standard for the Commonwealth or parties.
I don't read that as having been to limit
the interested non-party
from being able to have involvement.
But so perhaps MC needs to be expanded
in terms of how the reach of the UROP
goes beyond just parties, but...
-: Thank you, counsel. -: Thank you very much.
(pages rustling)
-: Attorney Brathwaite.
-: Good morning, Your Honors.
May it please the court,
I'm Kristin Brathwaite
for the Department of Children and Families.
Your Honors, there's only one question before you today,
and that is whether the lower court abused its discretion
in finding that appellant
did not meet its burden of showing good cause
to pierce the veil of confidentiality,
the blankets juvenile court proceedings.
I'm here today to ask you
to affirm the lower court's holding
that appellant did not demonstrate good cause
under Rule 7 of the Uniform Rules of Impoundment
and the disclosure of audio recordings
would violate juvenile court standing order--
-: If this case doesn't rise to the level
where the public has the right to know,
I'm just not sure what case would.
We've got a little girl's been killed
because of errors that we've recognized here,
but we haven't fully divulged or disclosed.
So doesn't this require complete or more disclosure?
'Cause the public doesn't trust government
to have done this properly
unless it can review all the facts
or more facts than have been presented so far.
-: So the answer I would say is no,
it doesn't rise to the level.
I think it does-- -: Oh, this one doesn't?
(Kafker laughing) -: I think it rose
to the level in the sense
that there is an oversight agency
that looks at cases such as this
where the public does require--
-: But the public doesn't have to rely
on an executive branch agency to do the vetting.
Usually the public relies on the press.
-: That's true in cases
that do not occur in juvenile court,
but in juvenile court,
we are-- -: Right, so what is
the continuing privacy interest
of anybody who's implicated
by the February, 2019 hearing,
which is, I understand,
that the only thing that's at issue?
-: So first I wanna address
the child's continued privacy interest
because I think these privacy interests
are at the heart of this case.
And I wanna be clear that there is no showing
that's been made that death extinguishes privacy right.
Gaziano: Just to be clear,
you're applying the MC standard, correct?
-: I'm applying the MC standard.
I think that that certainly identifies
the issues for consideration before the court.
Gaziano: Do you concede it applies in this case?
-: I don't concede it necessarily applies in this case.
It's complicated. -: Why not?
-: MC1 is very clear
that this applies only to parties
and to the Commonwealth.
MC1 also is clear that Rule 11
does apply to juvenile court records.
So I don't think clarification has been made
about whether this is the test to apply.
Wendlandt: Well, should it?
What would be the alternative test?
-: So in this particular set of circumstances,
the alternative test--
-: Well, it can't be a test based on each different case.
What is the test for an interested non-party?
-: So in this particular circumstances,
I only mean in the juvenile court context,
you have Standing Order 2-09,
which discusses the means to access audio recordings
in a closed proceeding.
They're made available in appellate matters.
And then if there is another reason for them,
similarly to the Rule 7 procedure,
an affidavit is filed,
and then the judge has discretion
to make a determination
either with or without a hearing, and--
-: Using what standard? -: Right.
-: So the order itself--
-: Well, of course, it doesn't lay it out.
The question is only whether the factors
that are ordinarily used
for lifting of impoundment or impounding
should apply in this context
with the statute order
is that these proceedings are confidential.
-: I would believe that it does.
And the reason I would believe that it does
is because it clearly lays out the factors
that have been identified as relevant for consideration
in determining whether juvenile court records
should be un-impounded.
With that said, the first test we look to
is the nature of the parties in the controversy.
And I think that the fact
that this is a non-party seeking access
is highly relevant to the balancing act of that.
-: But you're referring to the privacy interest
of the child who's been killed.
Isn't the (laughing) child's interest,
to the extent we can discern the child's interest,
it's not in her privacy,
but in making sure that this never happens again
what happened to her?
Isn't that her interest?
I don't understand what her privacy interest is.
-: Well, there's not been any case law or statute
that has extinguished privacy interest at death.
And quite the opposite,
I would actually direct the panel
to the area of attorney client confidentiality.
And in particular, I direct the court
to Swidler & Berlin versus United States,
wherein the Supreme Court of the United States
pointed to the ongoing issues
of someone who's been deceased,
"Of reputation, liability,"
and this is particularly important here,
"harm to family and loved ones
to justify maintaining
posthumous confidentiality." -: But I mean,
does that really fit here,
where the father has been convicted of killing the child,
the child is deceased,
and the obvious interest is protecting,
making sure this (laughing) child hasn't died in vain,
that we're not gonna do this again ever,
we're gonna do everything humanly possible
to not make the same mistakes again, right?
Isn't that the (laughing) legitimate interest here?
-: Well, it is a legitimate interest.
I don't know that it is appellant's legitimate interest,
but it's certainly the state's legitimate interest.
-: But if DCF is opposed
to allowing this information forward,
the father is prepared to have this disclosed,
the mother has certain residual privacy interests,
which I'm trying to understand,
but the person best serving not repeating this
seems to be the press.
Kristin: The law around--
-: Responsible press,
trying to figure out what happened
would seem to be protecting
that child's interest, isn't it?
-: Not in the current statutory or case law framework
that governs juvenile court records.
I would direct the panel to--
-: But it creates exceptions,
and this seems to be the exceptional case.
-: Well, I think-- -: It's not the ordinary case.
-: The reason appellant suggests this is an exceptional case,
and I know this is brought up in amicus briefs as well,
is because here the child died,
but I would direct--
-: The child didn't just die,
the child was killed
after the child was given to the person,
the state delivered the child
to the person who killed him, right?
And that was the father.
It's a complicated--
-: Right, which the state opposed.
-: The state did oppose.
-: So you can see the optics of that, right?
The child was delivered
to the very person DCF
opposed the child being delivered to,
and then this tragedy happened.
So why isn't the sunshine sanitation of this be,
"Let's see what happened, open it up?"
-: Because the intimate nature of the details
that exist in care and protection cases
warrant confidentiality.
-: But under that rule,
we would never allow care and protection proceedings
to be open.
And I think Justice Kafker's point is well taken
that this is one of those extreme cases
where maybe the veil of privacy should be pierced
in order for the betterment of these placement decisions.
-: In the event that this court
feels that this is one of those cases,
I would suggest this is an instance,
like Care and Protection of Sharlene,
where the decision would still need to comply with the laws
as it stands now,
but perhaps the legislature--
-: But the law as it stands now has,
as you've conceded,
these five factors to be weighed
in order to pierce that privacy veil
under the statute in weighing those factors.
I can't imagine a case
that calls for piercing that more than this one.
-: Well, the privacy-- -: Given that the child
was killed at the hands of the person
with whom the child was placed,
that person is asserting no privacy interests.
And it's still not clear to me
what the mother's residual privacy interests are.
It hasn't been articulated in any way.
Certainly the media can't say what those interests are
given that they don't have access
to the proceedings that they're trying to get to,
and I haven't seen that articulated by DCF.
-: Well, as far as mother's privacy rights,
I mean, and I'll allow my brother to speak more on this,
but her privacy rights
were certainly not extinguished at any point.
And she is a party to this matter,
it's her intimate detail. -: But as to
the February, 2019 hearing,
which is, as I understand it,
the only thing at issue,
what is it about mother's privacy that continues?
And maybe that's better directed at counsel for mom.
-: Well, I'm not sure if I fully follow
what you mean about what is--
-: Well, I'm trying to figure out,
one of the things that we need to do
is balance the continuing privacy, right?
The child has been murdered,
the father is not here saying,
"Don't release this February, 2019 hearing audio,"
and the only person
who has standing to assert it,
as I understand it, under the five factors, is mom.
And so I'm wondering
what mom's continuing privacy interest is
in the February, 2019 hearing.
-: So mother's continuing privacy interest
in the 2019 hearing
are that there's information in that hearing
that has not been publicly disclosed.
And in fact, the OCA report explicitly acknowledges
that some information was too private to disclose, and I--
Wendlandt: In that February, 2019 hearing?
-: That February of 2019 hearing.
And I would direct the panel here
to Commonwealth v. Roderick,
which stands for the proposition
that an individual may lose
his or her expectation of privacy
in some information
and yet retain an expectation of privacy
in separate material distinct information.
-: Where does the OCA report
say that mom had some privacy interest
in the February, 2019 hearing?
-: The OCA report does not distinguish
between where her ongoing
privacy interest existed. -: Well, see, that seems
to me problematic for your position
because the 2019 hearing
is the only one that's at issue.
-: But the 2019 hearing
was detailed at length
procedurally in how it went down.
And the OCA report at the outset said,
"We're revealing the confidential information
that we think that the public needs to know
in order to know what happened.
We are withholding that information
that is so intimate as it would be."
-: Can I ask you,
is your position on empowerment absolute
or are there instances
where it would give way?
-: There are instances where it would give way.
I mean-- -: Tell me those instances.
-: Well, it's hard, it's all hypothetical,
but for example, in the cases that we have before us,
we see people try to use these records
for their own criminal defense.
Those make a little bit more sense to me,
they seem to have more entitlement to the records.
I mean, under any analysis,
there is no freedom of access to these records.
And so then-- -: Just the narrow
MC situation in your view? -: It's a narrow MC situation,
which I would argue is even narrower than MC
because the court and MC,
as I know Your Honor is aware,
was clear that the test laid out today
applies to parties and the Commonwealth.
Here we have an uninterested party who has every right
to intervene. -: Okay, so under
your absolute rule,
there's wiggle room as you see it
for parties who need the records for criminal defense.
Any other instances?
-: I could certainly imagine
that there would be instances.
It's so hypothetical, so it's hard to answer.
But for example, was there a concern
that perhaps something in the February, 2019 hearing
might give us information
about where this particular child was
during the time she was presumed missing?
Which in fact is, in Massachusetts--
-: But how do they know
if they've not been given that information to look at?
We're trusting the Office for Children
and we're asking the public
to trust the Office for Children. (laughing)
-: Again, I would direct the court
to Care and Protection of Sharlene,
which is clear that even though
there is interest in these records,
they are impounded,
it does not run afoul of the First Amendment.
And here I'd also just-- -: Wasn't Sharlene
the father wanted, on behalf of the public,
somehow he wanted to say
these records should be public
when in fact he was the cause of Sharlene,
the child in that case,
being in a coma?
-: Yes, but the-- -: So I think that
the court was struck by the perversity of that position
and questioned even whether the father
had standing on behalf of the public.
You're not suggesting that LCMedia
doesn't have standing on behalf?
Kristin: I'm not suggesting that LCMedia
doesn't have standing on behalf
of the public. -: So how does Sharlene
help us here?
-: But how Sharlene helps us here
is that it distinguishes
that even though there may be a desire
to release some information,
it cannot be under the statutory scheme.
This is a legislative question.
Sharlene ultimately comes down and says,
"We think some of this should be made available.
It can't be under the current state of the law."
And I would argue
the same holds true. -: Because father,
when you look at the balancing tests in that case,
just didn't make a showing.
-: But I would again remind the panel
that we're looking at an abuse of discretion standard.
This isn't the case where the judge simply said,
"Denied," and we don't know why.
She looked at the record,
she balanced these factors,
she made a decision.
-: And can I ask, was it the same?
I'm trying to figure out,
is the same judge-
-: Yes. -: the custody judge,
as well as the judge in this decision?
-: Mm-hmm. -: The judge who presided
over the February, 2019 hearing
is no longer on the bench.
So it was a sitting judge in the same court
who actually did have,
at times, she is reflected on the docket when it existed,
but she was not the judge
who made that-- -: It wasn't clear to me.
Sorry. -: Sorry,
I just wanna make sure,
so the judge who did the second decision
is not the judge who did the custody decision
allowing the child to go to the father?
Kristin: Those are two different judges.
-: Two different judges. -: Although this judge
was involved in expediting
the Interstate Compact report?
-: This judge may have,
she was not the presiding judge of this case.
And I don't have the docket to reflect.
I can't-- -: I think the record
clearly shows she was the judge
in the earlier decision. -: So I know
she had involvement in the case,
but she was not the one who presided
over the February, 2019 hearing.
-: It was not clear to me,
but perhaps it's clear somewhere else,
but I didn't see it,
that the judge reviewed the audio
of the February, 2019 hearing.
That was not clear to me from the decision.
Do you know whether in fact the judge did?
-: I don't know whether in fact she did with certainty,
but I can say that one line she says in her argument
is that there was information
that was too intimate to release in the hearing.
So that leads me to believe
she would've been basing that
on having listened to it.
With that said, I do not believe she asserts anywhere
that she did.
-: So that feels to me like a hard thing then
to know how the balancing was done.
-: Well, I think she spells out her view
of the balancing act.
And I agree that people
may be able to have different conclusions,
but I don't think it rises to the level
that no conscientious judge acting intelligently
could honestly have reached such a decision.
And I would also like to ask the panel to look to--
Kafker: Is that the old abuse of discretion standard
you're reading from
or the new one?
-: That's from Care and Protection of Georgette?
It's been modified a little bit,
but another one we could look at that--
Gaziano: We'll look at LL,
which is our abuse of discretion standard.
-: Fair, but even still,
I really don't think you could find
this judge did not meet that standard.
She held a hearing,
she ruled on each factor,
she waived them.
And again, I would also,
I know it is not binding,
but I would also like to just direct the panel
to it's Adoption of Gemma.
It is un-binding,
it's a Rule 128 unpublished opinion,
but it's an instance where a foster parent sought records,
and the fact that the foster parent was not a party
was part of the balancing act.
They still did a Rule 7 analysis,
but found that it was relevant.
Wendlandt: Can I ask you logistically?
I'm sorry. -: Please.
-: As a logistic matter,
assume for a moment,
and I have no reason to believe this is true,
that this panel believes that the case should be remanded
for a rebalancing of the five factors
and actual listening to the audio
of the February, 2019 hearing
confirmation of that fact,
is there a way to redact things from the hearing?
Is that possible
given the use that this journalist expects to make
of the transcript?
The reason I ask is because it seems like in MC
there was allowance for access for,
I think it was the defendant in the Commonwealth
in the criminal case,
to certain records,
but the records still belonged to the juvenile court
in order to be returned in some sort of fashion afterwards.
How does that work in this context
where it's the media?
-: Well, it doesn't.
I mean, one of the things that comes up in MC
and also in various contexts
is that the whole purpose of allowing these records
is still meant to be in protection of public disclosure.
So even when these requests have been granted,
there's been--
-: I thought she raised that as a possibility,
that once she reviews it,
that they're open to some discussion about limitations
the way Justice Wendlandt just phrased it.
I thought that's part of their request.
-: Well, it was something that was suggested later,
but I think even still what they're seeking to use
would be for public disclosure.
And so the distinction I'm making
is simply that when they reached a compromise in MC,
it was also held that there would still be limitations
put on how it could be used
to ensure it did not enter the public forum.
Whereas here it's being sought
specifically for public disclosure,
which is in direct contravention
of the policy surrounding this,
which is why the lower court judge
identified this as being a question for the legislature
and not for the court,
because we have law that answers these questions.
So I think what's challenging
is it might be one of those questions
where we want it to say something different,
but as the law stands right now,
the privacy interests
are the most compelling interests in this case.
Gaziano: Thank you, any further questions?
-: No. -: Thank you, counsel.
-: Thank you, Your Honors.
(pages rustling)
-: May it please the court.
Good morning, my name's Andrew Hoffman.
I represent the appellate mother in this case.
She opposes the petitioner's request
for access to information
and asks that this court
affirm the lower court's decision
to deny petitioner's motion.
I'm sensing that you have been waiting
to ask me what remaining privacy interests the mother has.
I do wanna address that.
If I could quickly address a couple of other issues
that have been raised here,
because I do think they're extremely important.
The first is, the last question raised by Justice Wendlandt
and then touched on by Justice Kafker.
The petitioner did propose a remedial idea,
actually had three ideas.
One was to, one and two were kind of similar,
which is basically go through and ferret out,
select out just the information
pertaining to the judge's reasoning
and leave out all of the mother's privacy interests.
The last suggestion was that the parties
get a copy of the transcript ahead of time
and get to go through and redact that.
And my client's position
is that those would not work here.
One, it's a major assumption
for the first two of those proposals
that this information can be easily segregated,
that somehow during the court proceeding
that they touched on
only mother's privacy interests at one point,
and then at a separate time,
only the judge's reasoning
for making her decision,
when in reality, as we know how things go in court,
it's much more likely that those pieces of information,
those points were most likely jumbled.
So it's unlikely that those would be easily segregated.
Wendlandt: So mother's position
is that this has to be disclosed totally
or not at all?
-: Well, so not necessarily.
What I was gonna say is, for the third one is,
in this case, according to care and protection cases,
which I'm sure this court has seen,
this is a pretty thin evidentiary record.
Meaning this motion was filed,
these proceedings were based on this motion.
But as this court probably also knows,
in some of these cases,
the record can be voluminous.
And it would warrant an unreasonable burden
on a parent to have to go through
potentially thousands of pages of a transcript
and identify those portions
which are privacy, interest and objectionable
versus those which are not.
That would be a shifting of the burden of proof,
which is impermissible to the parent to do that.
-: I'm not sure I understand why it would be so difficult.
Again, I understand also
that there's some disagreement
about what has been made public by the mother
and what hasn't been,
but why is it not possible
to go through the transcript
and identify private material of the mother
that she hasn't already disclosed
if she's been on TV,
or she's been talking about her substance abuse,
or whatever her problems were before,
why couldn't you do that?
-: Right, so kind of a two-part answer.
One, as I said, in this case,
it may have been possible to do that.
The test, as we've already discussed this morning--
-: So wouldn't that solve your client's interest in that
if you just go through the transcript
and redact out mom's personal information?
-: It could potentially.
I was thinking about a frankly polite way
of responding to this question
I knew that was coming,
which is, again,
to the shifting of the burden,
that the mother shouldn't have to,
the way I would phrase it,
shouldn't have to disclose her privacy interests
to then protect her privacy interests.
In other words, it's a perversion of logic
and shifting the burden for her to speak up
and identify affirmatively
what her privacy interests are
when those are the exact interests
that she is trying to protect.
-: Wouldn't that come out naturally in the hearing though,
her issues,
or the things that give rise, her privacy interests,
would be the natural part of these proceedings, correct?
-: Yes, but then that would be brought out to the parties.
But we're talking about here a non-party
who's seeking access to that,
so that's--
-: But she wasn't even a potential, right?
The mother wasn't seeking custody, right?
She wasn't seeking custody.
Her problems seem to be peripheral
to the issues that are being dealt with by the judge,
which is whether to give the child to the father
or to keep the child with DCF.
So I mean, I'm not even sure how interested
they're gonna be in the mother's information
as long as they can figure out,
"Why did the child go to the father
given his criminal record?"
-: Right, I agree with the first part of your statement,
not the second part.
-: Okay, go ahead. -: So you're correct.
Earlier in the case, yes,
they had been seeking reunification to mother,
that she had been seeking reunification.
In fact, the child had been returned to her
and then removed a couple times.
At that point in process, no,
they were only looking at the father.
But what I don't agree to
is the use of your term peripheral,
the whole point of 11938 for privacy interest--
-: Fair point. -: Yeah, so--
-: But that's not most likely to be
what the focus of the press is,
which is, "Why did it go to the father
and why did the system allow it to go to the father
who ends up killing the child?"
So I just don't see
why they can't deal with your interest
the way Justice Wendlandt talked about,
which is dealing with this once the material is disclosed
and then working out something
that protects the mother's interests.
-: Right, and so the response is,
and this is what the lower court judge
touched on in her ruling
is you're probably correct.
I mean, we don't know exactly what the press
would do with mother's privacy interests,
presuming even that that's not really their--
Wendlandt: No, but if it was redacted out,
they would have no choice
but to do nothing with it.
-: Yeah. -: So that would be
fine for your client,
right? -: They wouldn't have it.
Kafker: Or they'd have to agree to a confidentiality,
something. -: Might be possible.
Yeah, but to try and respond to your question,
we don't know what the press would do with that.
And that was the judge's exact point in a ruling
is once it's out, there's no meaningful remedy.
Wendlandt: Well, there's contempt.
I mean, to me that seemed to--
-: That doesn't...
I'm sorry, go ahead.
-: Well, it may not satisfy you,
but it's certainly what the judge can do
to enforce an order.
-: That is certainly an option available to her.
It wouldn't satisfy protection of the privacy interest,
and that was a basis for her decision,
and that doesn't rise to level of abuse of discretion here.
Gaziano: Would redaction satisfy privacy interests?
-: If it could be accomplished in this case, I--
-: Well, it seems like you're conceding that it could
because it's just the February, 2019
hearing. -: I'm conceding it's possible.
We don't have enough information to know,
and it was within the judge's discretion to--
-: But shouldn't we remand it to find out,
as opposed to trying to guess?
-: That would be one option.
And if I could, I realize I'm over time,
but quickly, the one other point I wanted,
because several of you have raised it,
is the standard.
A strict reading of MC,
as was noted by counsel earlier,
limits the test under 7B
to just parties in the state.
-: Well, it doesn't-- -: Well, it wasn't raised
(laughing) in MC. -: Yeah, it was--
Gaziano: That wasn't an issue in MC.
-: No, I understand-- -: Right, the question
for this case is do we apply that same standard
for a non-party?
-: Right, so what I was going say is this.
I think a strict reading would say 7B doesn't apply,
and you're just left with Standing Order 2-09.
-: What would be your alternative test
to the one articulated in MC?
-: What I was going to say is this,
I think it's eminently reasonable
to have a balancing analysis like 7B,
and if this court wants to add on to MC1 and 2 to say,
"We wanna clarify that this balancing analysis
does apply to non-parties,"
I think that's eminently reasonable,
and that's what I would propose.
It does seem like there should be some balancing analysis
rather than just strict no access under 2-09.