WEBVTT

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<v ->SJC-13601,</v>

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Department of Children and Families versus Mother et al.

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(pages rustling)

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<v ->Attorney Lamanna.</v>
<v ->Good morning.</v>

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May it please the court,

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my name is Jennifer Lamanna

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and I represent the appellant, LCMedia.

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We must not allow public institutions

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to hide behind the privacy rights of individuals

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in order to evade public scrutiny and critique.

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In this particular case

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and under the specific facts of this case,

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the lower court judge abused her discretion

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by failing to properly balance the privacy interest,

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whatever those may remain for this family,

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against the public's right

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to know exactly what happened in a proceeding

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that led to a child being placed in the custody

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of her eventual murderer.

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LCMedia came before the lower court

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seeking using the Uniform Rules of Impoundment standard

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and alleging that he had good cause

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to seek release of the specific audio

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that resulted in the hearing

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that granted custody to the father in this matter.

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While it is certainly true that,

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pursuant to its statutory mandate,

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the Office of the Child Advocate

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produced a detailed report,

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it is unquestionable

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that that report itself

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was a summary of information

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that the OCA determined to be relevant and necessary

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in order to inform the public.

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<v ->So I agree with you</v>

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that obviously the most important consideration

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is trying to figure out

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what went terribly wrong here.

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Is there anything that shouldn't be turned over?

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I mean, are there any residual privacy interests

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that we have to take into account here given that?

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I mean, I'm trying to understand,

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is there anything that should be impounded in your view?

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<v ->Well, as you're aware, Justice Kafker,</v>

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we've had no access whatsoever.

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So I can't specifically point

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to a particular statement by counsel

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during that proceeding

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that would reveal something

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that is not already out in the public domain.

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But as I'm sure the justices are aware,

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when we brought this motion,

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we specifically requested

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from the lower court judge

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that she exercise

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the broad discretion that she has to limit,

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if there is indeed information

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that the public does not already have,

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that that could be limited

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when the disclosure is made.

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So names could be redacted.

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This is a case that, it goes without saying,

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has had enormous public exposure,

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both nationally and internationally.

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<v Wolohojian>How does that factor into?</v>

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I didn't see that as something to be considered

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in the factors the judge was to consider.

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<v ->Thank you, I would say it has to be considered</v>

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because the nature of the public interest

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is part of the standards under the UROP.

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<v ->But the nature of the public interest may be,</v>

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but the quantity of public interest that's already occurred

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doesn't seem to me to be coterminous

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with that first factor.

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<v ->It's certainly not a deciding factor.</v>

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The fact that you could have an equally serious case

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that for some reason had not received

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the same level of press attention,

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and I think you could still meet

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all of the other factors.

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<v ->Okay, so again,</v>

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why is the quantity of attention relevant?

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<v ->I think it's less the quantity of attention,</v>

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but the content of the attention

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that goes to the privacy interest

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that Justice Kafker was just questioning.

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<v ->And by that do you mean just the subject matter at issue?</v>

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<v ->Well, the subject matter at issue,</v>

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but certainly the fact that it appears clear

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that the underlying statutory scheme

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for privacy under Chapter 119

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is to protect children and families

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involved in these type of proceedings

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from the stigma attached to having parents

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with substance abuse issues,

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parents who have perhaps performed

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appalling acts to children,

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and to protect them from that.

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In this particular case,

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A, the mother herself

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has freely discussed the substance abuse issues

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that led her to lose custody of her child.

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The father, who one would think

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would have some objections to disclosure,

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has not objected to disclosure at all.

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The Department of Children and Families,

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while they argue strenuously

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against any sort of waiver

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of any of the privacy interests,

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I would respectfully suggest

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that the design of the statute

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is not to protect the government agency that's operating.

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<v ->Do they have any privacy interests, the DCF?</v>

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I mean, I understand how the mother

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can have a privacy interest,

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the father, the children,

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and maybe even the adopted siblings,

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but DCF has no privacy interests, right, whatsoever?

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<v ->I agree with that, I agree with that completely,</v>

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Justice Kafker.

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While the department has, in this case and in others,

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I've asserted that the names

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of the social workers, for example,

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should be kept private

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because they're considered under Section 38 of 119

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names of the parties.

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I dispute that,

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I don't think the names of government actors

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in the course of their public employment

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constitute a privacy interest.

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Certainly none of these proceedings

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involve personal facts

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about the individual social workers,

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it is--
<v ->Well, they do</v>

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in the sense that the Office for Children

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finds fault with DCF.

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I'm not sure the individuals they find fault with, right?

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But that report finds fault with DCF, correct?

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<v ->Yes, that report--</v>
<v ->And particular individuals</v>

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of DCF?

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<v ->Well, the report specifically criticizes</v>

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counsel for DCF

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for their lack of legal argument

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and motions practice

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in terms of highlighting the department's position

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in that case.

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So I suppose technically that's a specific individual at DCF

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as opposed to the agency as a whole

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that would be identified.

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<v ->So they might have some privacy interests,</v>

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or maybe not, I don't know.

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<v ->I would certainly hesitate to suggest</v>

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that a government employee

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who by another oversight agency

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has been accused of not having performed their duties

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diligently and appropriately

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has a privacy interest

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in protecting public exposure.

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That's exactly how the public and the press

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and the legislature

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inform themselves over what reforms are necessary.

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And I wish to be clear, of course,

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that this is a case based on these facts,

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just as MC requires

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that there must be a factual analysis

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of this specific case.

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We are not seeking to reform the entire system,

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we are seeking to inform the public

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and the press and the legislature

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who has been asked by the OCA report

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to consider a number of recommendations

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that would completely alter, for example,

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the child-directed advocacy model

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that currently exists for CBCS.

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We are taking the position

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that the OCA report,

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while lengthy--
<v ->Well, you are seeking</v>

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to reform the system, right?

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That's a big part of your brief

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is that you feel the investigation here

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will improve the system

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and correct the errors that were made, correct?

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So that we don't do this ever again,

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or we do whatever humanly possible

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to avoid doing this again?

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<v ->There are systemic changes</v>

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that need to be made.

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There are seismic shifts that need to happen

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in the entire juvenile court model.

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There's no question about that.

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But this specific case,

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nobody knows,

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not the legislature,

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not anybody outside of the parties themselves and the OCA

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knows what exactly happened

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during that hearing

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that resulted in the court

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granting custody.

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And the OCA--
<v ->Is that</v>

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the extent of your request at this point?

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'Cause I thought you were requesting,

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there was an August, 2014

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temporary custody proceeding,

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there was a July 15th trial, 2015,

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December, 2018 hearing,

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where the judge issued

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the request for an expedited interstate compact

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on the Placement of Children report,

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and then there is the February, 2019 review.

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Which of those four,

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or all of those four,

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what are you looking for?

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<v ->My client initially filed his motion, pro se,</v>

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but was specifically seeking access to the audio

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for the February, 2019 proceeding.

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<v ->Okay, and that's the limit of your request at this point?</v>

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<v ->At this point, and again,</v>

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the judge has given broad discretion

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to craft an order that shields

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any potential private information

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that may still be out there.

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I don't know what it is.

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I don't know if it exists.
<v ->But let's go back one.</v>

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I mean, you're alluding to the judge's broad discretion

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to craft whatever parameters might be necessary,

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but if you go back a few dominoes,

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the judge has discretion

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to allow your client's request for access or not.

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And that is subject to an abuse of discretion standard.

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You started off your argument

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by saying, "The public's right to know."

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So there's really not a right to know here,

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there is a process

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by which you can seek to have some access.

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And the judge, my concern here is,

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you have an abuse of discretion standard,

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there are certain factors that were weighed

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in ways that you perhaps disagree with,

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but does that rise to the level

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of an abuse of that judge's discretion

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or are you asking us

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to substitute our judgment

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for the trial judge's judgment?

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<v ->I am not asking you to substitute your judgment.</v>

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My suggestion is, is that the lower court judge

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did abuse her discretion in two specific ways,

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in a number of ways that I take issue with,

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but two that I think are quite specific.

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First, there is no real analysis

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in the judge's decision

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of the actual privacy interests at stake here.

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There is a passing reference

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to perhaps the privacy interests

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of other children that the mother may have.

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And of course, everybody,

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while arguing this matter below,

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kept referencing Section 38 of Chapter 119,

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which says, "It shall be unlawful

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to publish the names of parties

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to these proceedings."

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Mothers, subsequent children are not parties

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to these proceedings,

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so that would not have protected them.

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So the judge made no specific finding

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as to what privacy interests remained

266
00:10:36.060 --> 00:10:38.010
and how those privacy interests

267
00:10:38.010 --> 00:10:39.870
would be affected by disclosure.

268
00:10:39.870 --> 00:10:41.670
I believe that was an abuse of her discretion,

269
00:10:41.670 --> 00:10:43.440
she was required to do that.

270
00:10:43.440 --> 00:10:44.760
I would further add, Justice,

271
00:10:44.760 --> 00:10:46.260
that one of the other things

272
00:10:46.260 --> 00:10:47.430
the judge was supposed to do

273
00:10:47.430 --> 00:10:49.727
was to balance the interest at stake

274
00:10:49.727 --> 00:10:51.226
and--
<v ->This is the second way</v>

275
00:10:51.226 --> 00:10:52.059
the judge?
<v ->Yes.</v>

276
00:10:52.059 --> 00:10:53.094
<v ->Okay.</v>
<v ->Yes.</v>

277
00:10:53.094 --> 00:10:57.660
And the second, the judge was required

278
00:10:57.660 --> 00:11:01.860
to evaluate the constitutional rights

279
00:11:01.860 --> 00:11:03.360
that were at stake here.

280
00:11:03.360 --> 00:11:07.860
And I think there cannot be an argument

281
00:11:07.860 --> 00:11:11.820
that state-conferred confidentiality via statute

282
00:11:11.820 --> 00:11:14.130
trumps the United States Constitution.

283
00:11:14.130 --> 00:11:15.750
And the court in this case

284
00:11:15.750 --> 00:11:18.060
specifically dismissed any idea--

285
00:11:18.060 --> 00:11:19.800
<v ->What constitutional right are you relying on?</v>

286
00:11:19.800 --> 00:11:22.830
Because you concede in your brief

287
00:11:22.830 --> 00:11:25.530
that you cite a bunch of criminal cases,

288
00:11:25.530 --> 00:11:27.660
which is a very different calculus

289
00:11:27.660 --> 00:11:28.770
than a civil case here.

290
00:11:28.770 --> 00:11:32.370
So what constitutional right are you relying on?

291
00:11:32.370 --> 00:11:33.930
<v ->Well, I would first say,</v>

292
00:11:33.930 --> 00:11:35.880
Richmond News is the first one

293
00:11:35.880 --> 00:11:37.050
that comes to mind, of course.

294
00:11:37.050 --> 00:11:38.850
Richmond News did involve a criminal case,

295
00:11:38.850 --> 00:11:41.640
but as I'm sure Your Honor is aware,

296
00:11:41.640 --> 00:11:43.200
throughout the decision making,

297
00:11:43.200 --> 00:11:44.910
there were a number of concurrences,

298
00:11:44.910 --> 00:11:47.460
the justices specifically keep going back

299
00:11:47.460 --> 00:11:49.500
to the First Amendment and to the Fourteenth Amendment.

300
00:11:49.500 --> 00:11:51.360
They do not rely on the Sixth Amendment.

301
00:11:51.360 --> 00:11:52.980
And then there's a line of case law

302
00:11:52.980 --> 00:11:54.750
from that--
<v ->But criminal cases</v>

303
00:11:54.750 --> 00:11:56.760
historically are open to the public,

304
00:11:56.760 --> 00:11:58.800
whereas these cases are not.

305
00:11:58.800 --> 00:11:59.633
<v ->These cases are not</v>

306
00:11:59.633 --> 00:12:01.856
historically open--
<v ->So can you</v>

307
00:12:01.856 --> 00:12:03.900
address for me

308
00:12:03.900 --> 00:12:06.220
why that analysis doesn't matter

309
00:12:07.080 --> 00:12:08.163
in your estimation?

310
00:12:09.270 --> 00:12:12.900
<v ->I am not suggesting that, like criminal cases,</v>

311
00:12:12.900 --> 00:12:14.340
every juvenile court case

312
00:12:14.340 --> 00:12:15.540
should be open to the public.

313
00:12:15.540 --> 00:12:17.220
I'm not asking for a blanket rule

314
00:12:17.220 --> 00:12:18.600
that applies in criminal matters

315
00:12:18.600 --> 00:12:19.680
to be--
<v ->No, but you're arguing</v>

316
00:12:19.680 --> 00:12:23.310
on the constitutional prong

317
00:12:23.310 --> 00:12:27.660
of that Rule 11 analysis.

318
00:12:27.660 --> 00:12:31.170
And I'm wondering why you're equating access,

319
00:12:31.170 --> 00:12:33.630
or the right to access,

320
00:12:33.630 --> 00:12:35.520
to these proceedings,

321
00:12:35.520 --> 00:12:38.460
which historically has not been allowed

322
00:12:38.460 --> 00:12:40.980
with those in the criminal proceeding.

323
00:12:40.980 --> 00:12:45.060
<v ->So there is an extensive line of cases</v>

324
00:12:45.060 --> 00:12:47.310
referring to both civil and criminal matters

325
00:12:47.310 --> 00:12:50.910
that discusses the fact that the right to speak

326
00:12:50.910 --> 00:12:52.500
implies a right to listen,

327
00:12:52.500 --> 00:12:54.390
the right to freedom of the press

328
00:12:54.390 --> 00:12:57.090
implies a right to gather information.

329
00:12:57.090 --> 00:13:00.480
There is an excellent quote by Justice Stewart

330
00:13:00.480 --> 00:13:02.340
in his concurrence in Richmond,

331
00:13:02.340 --> 00:13:03.577
where he essentially says,

332
00:13:03.577 --> 00:13:07.650
"We don't expect our public institutions to be fallible,

333
00:13:07.650 --> 00:13:09.540
but it's extremely difficult for the public

334
00:13:09.540 --> 00:13:12.540
to understand that which it is not allowed to observe."

335
00:13:12.540 --> 00:13:15.180
I think particularly taking into account

336
00:13:15.180 --> 00:13:17.850
the UROP factors that exist here,

337
00:13:17.850 --> 00:13:22.850
there is a constitutional right of the press to access--

338
00:13:22.980 --> 00:13:26.553
<v ->How do we measure that community interest prong of MC?</v>

339
00:13:27.390 --> 00:13:29.730
It seems to me that this is a case

340
00:13:29.730 --> 00:13:34.290
that would, of course, ordinarily be private and unsealed,

341
00:13:34.290 --> 00:13:36.070
and what makes this case different

342
00:13:37.470 --> 00:13:38.970
when you go through the factors

343
00:13:38.970 --> 00:13:41.040
is the level of community interest.

344
00:13:41.040 --> 00:13:43.413
How is a judge to measure that?

345
00:13:44.850 --> 00:13:47.460
<v ->Well, it is certainly within the judge's discretion</v>

346
00:13:47.460 --> 00:13:48.293
to do that.

347
00:13:48.293 --> 00:13:49.350
And I think that that's part

348
00:13:49.350 --> 00:13:51.030
of the balancing test--
<v ->But how?</v>

349
00:13:51.030 --> 00:13:52.680
<v ->Well, I think that's part of the balancing test</v>

350
00:13:52.680 --> 00:13:53.640
that didn't occur here,

351
00:13:53.640 --> 00:13:56.390
is to say, "So what is the level of community interest?"

352
00:13:56.390 --> 00:13:58.110
In this case, the level of community interest-

353
00:13:58.110 --> 00:13:59.210
<v Gaziano>Is it if the local paper--</v>

354
00:13:59.210 --> 00:14:00.188
<v ->is incredibly high?</v>

355
00:14:00.188 --> 00:14:02.040
<v ->I'm sorry?</v>
<v ->Is it if the local paper</v>

356
00:14:02.040 --> 00:14:05.010
wants to write about it or is it?

357
00:14:05.010 --> 00:14:06.720
How is this measured?

358
00:14:06.720 --> 00:14:07.890
How is it applied?

359
00:14:07.890 --> 00:14:10.740
<v ->I think it requires a number of different factors.</v>

360
00:14:10.740 --> 00:14:12.390
One of which, for example,

361
00:14:12.390 --> 00:14:13.680
is it just the local press,

362
00:14:13.680 --> 00:14:15.750
is it "The Lowell Sun" reporting on this,

363
00:14:15.750 --> 00:14:18.270
or is it "The Washington Post?"

364
00:14:18.270 --> 00:14:19.650
Is it a number

365
00:14:19.650 --> 00:14:20.970
of different media outlets?
<v ->That shouldn't matter.</v>

366
00:14:20.970 --> 00:14:23.400
Shouldn't whether it's "The Washington Post"

367
00:14:23.400 --> 00:14:25.500
or the local newspaper?

368
00:14:25.500 --> 00:14:28.230
It's gotta be based on the fact

369
00:14:28.230 --> 00:14:32.520
that there's been a terrible governmental error here, right?

370
00:14:32.520 --> 00:14:37.520
That's what provides the constitutional,

371
00:14:37.530 --> 00:14:38.850
this is a different case,

372
00:14:38.850 --> 00:14:41.340
it's not an ordinary juvenile case.

373
00:14:41.340 --> 00:14:44.160
There's been a terrible error

374
00:14:44.160 --> 00:14:46.950
that's resulted in a death of a child.

375
00:14:46.950 --> 00:14:50.610
And the public has a right to understand that, right?

376
00:14:50.610 --> 00:14:53.400
It's not whether "The Washington Post"

377
00:14:53.400 --> 00:14:56.553
or the wool paper is interested.

378
00:14:57.390 --> 00:14:59.637
It's the government's made a big mistake here

379
00:14:59.637 --> 00:15:01.410
and we gotta figure out why.

380
00:15:01.410 --> 00:15:02.430
<v ->Oh, I agree with that,</v>

381
00:15:02.430 --> 00:15:03.960
but I was specifically responding

382
00:15:03.960 --> 00:15:05.617
to Justice Gaziano's question,

383
00:15:05.617 --> 00:15:07.920
"Does it matter if it's just the local paper?"

384
00:15:07.920 --> 00:15:08.753
And I'm saying--

385
00:15:08.753 --> 00:15:11.100
<v Kafker>Why should it matter if it's national or local?</v>

386
00:15:11.100 --> 00:15:13.140
<v ->If no one knows about it, respectfully,</v>

387
00:15:13.140 --> 00:15:14.310
if no one knows about it,

388
00:15:14.310 --> 00:15:16.470
except for one member of the family

389
00:15:16.470 --> 00:15:18.480
who attempts to get public attention

390
00:15:18.480 --> 00:15:21.420
and that person seeks to generate public interest

391
00:15:21.420 --> 00:15:23.820
to highlight this horrific act that occurred,

392
00:15:23.820 --> 00:15:24.960
that could be sufficient

393
00:15:24.960 --> 00:15:26.430
in terms of community interest,

394
00:15:26.430 --> 00:15:27.630
but it--
<v ->Could I?</v>

395
00:15:27.630 --> 00:15:28.463
Just wanna make sure,

396
00:15:28.463 --> 00:15:30.870
you keep saying that there were things

397
00:15:30.870 --> 00:15:33.480
that the trial judge didn't do.

398
00:15:33.480 --> 00:15:36.750
So why isn't this more of a case for remand

399
00:15:36.750 --> 00:15:40.410
than it is for this court to order access?

400
00:15:40.410 --> 00:15:44.100
You keep saying, "She didn't balance the community interest,

401
00:15:44.100 --> 00:15:47.490
she didn't balance the constitutional concerns,"

402
00:15:47.490 --> 00:15:48.780
all of these different things

403
00:15:48.780 --> 00:15:50.460
that you claim the judge did not do.

404
00:15:50.460 --> 00:15:52.410
Why isn't this a remand case then?

405
00:15:52.410 --> 00:15:53.280
<v ->It could be a remand,</v>

406
00:15:53.280 --> 00:15:54.990
that's certainly within your authority to do,

407
00:15:54.990 --> 00:15:57.090
to remand and to ask the lower court judge

408
00:15:57.090 --> 00:16:00.390
to actually balance the freedom of access

409
00:16:00.390 --> 00:16:01.680
that we are alleging

410
00:16:01.680 --> 00:16:05.490
is part and parcel of the freedom of the press

411
00:16:05.490 --> 00:16:07.440
that is protected under Article 16

412
00:16:07.440 --> 00:16:08.760
and the First Amendment.

413
00:16:08.760 --> 00:16:11.190
You could certainly remand it to her to do that.

414
00:16:11.190 --> 00:16:13.560
But I think the facts just within the four corners

415
00:16:13.560 --> 00:16:15.000
of the judge's decision

416
00:16:15.000 --> 00:16:17.460
are also sufficient for you to determine

417
00:16:17.460 --> 00:16:18.960
an abuse of discretion was made

418
00:16:18.960 --> 00:16:20.310
and a clear error was made,

419
00:16:20.310 --> 00:16:22.097
and issue a different decision.

420
00:16:22.097 --> 00:16:24.030
<v ->I don't know if I follow that,</v>

421
00:16:24.030 --> 00:16:27.660
because if I marry Justice Wolohojian,

422
00:16:27.660 --> 00:16:30.150
Justice Kafka and Justice Gaziano's concern

423
00:16:30.150 --> 00:16:32.790
about what's the limiting principle here?

424
00:16:32.790 --> 00:16:34.710
Because there are a bunch of these different factors,

425
00:16:34.710 --> 00:16:35.880
but you seem to be arguing

426
00:16:35.880 --> 00:16:37.650
that the first among equals

427
00:16:37.650 --> 00:16:41.100
is how much people wanna know.

428
00:16:41.100 --> 00:16:43.470
And there are plenty of awful cases

429
00:16:43.470 --> 00:16:45.210
where children get hurt

430
00:16:45.210 --> 00:16:47.580
or they die in DCF custody,

431
00:16:47.580 --> 00:16:49.740
and so what makes this case different,

432
00:16:49.740 --> 00:16:51.300
that this is the case

433
00:16:51.300 --> 00:16:53.040
that we should say you get access

434
00:16:53.040 --> 00:16:55.680
because this is the one everybody wants to know?

435
00:16:55.680 --> 00:17:00.420
But if it just happens to be the next tragic case

436
00:17:00.420 --> 00:17:02.310
that no one knows about,

437
00:17:02.310 --> 00:17:04.740
that somehow that doesn't factor in

438
00:17:04.740 --> 00:17:06.720
and militate in favor of disclosure,

439
00:17:06.720 --> 00:17:08.310
but this one does,

440
00:17:08.310 --> 00:17:11.370
and this factor is more pronounced

441
00:17:11.370 --> 00:17:13.860
and more dense than all of the other factors.

442
00:17:13.860 --> 00:17:16.140
How is the judge supposed to do that?

443
00:17:16.140 --> 00:17:17.640
<v ->Well, this case is profound.</v>

444
00:17:17.640 --> 00:17:19.230
The Office of the Child Advocate

445
00:17:19.230 --> 00:17:21.660
specifically found there are certain cases

446
00:17:21.660 --> 00:17:23.970
that come before the Office of the Child Advocate

447
00:17:23.970 --> 00:17:25.290
in which it is determined

448
00:17:25.290 --> 00:17:27.000
the public has a right to know,

449
00:17:27.000 --> 00:17:30.390
the case cries out for further explanation.

450
00:17:30.390 --> 00:17:33.720
And the OCA in this case took that,

451
00:17:33.720 --> 00:17:37.740
took that, assessed it with that same level of seriousness

452
00:17:37.740 --> 00:17:39.120
that we are assessing it with,

453
00:17:39.120 --> 00:17:41.610
and determined that the public had a right to know.

454
00:17:41.610 --> 00:17:43.470
And I wish to be clear,

455
00:17:43.470 --> 00:17:46.200
I am in no way implying any bias

456
00:17:46.200 --> 00:17:47.550
on the part of the OCA,

457
00:17:47.550 --> 00:17:49.290
or that the OCA was in some way trying

458
00:17:49.290 --> 00:17:51.780
to shield a government agency.

459
00:17:51.780 --> 00:17:54.690
But when the public and the press

460
00:17:54.690 --> 00:17:57.000
and the legislature are informed

461
00:17:57.000 --> 00:17:59.280
by a single individual's distillation

462
00:17:59.280 --> 00:18:01.920
of what they considered to be the important facts,

463
00:18:01.920 --> 00:18:04.710
that is the opposite of the right of free access.

464
00:18:04.710 --> 00:18:08.040
That is a way to infringe upon the free press

465
00:18:08.040 --> 00:18:11.640
as opposed to a way to ensure that it is robust

466
00:18:11.640 --> 00:18:14.970
and given the level of the ability

467
00:18:14.970 --> 00:18:16.500
that a public requires

468
00:18:16.500 --> 00:18:17.550
in order to be informed

469
00:18:17.550 --> 00:18:19.710
and in order to inform their own legislature.

470
00:18:19.710 --> 00:18:21.510
<v Wolohojian>Justice Gaziano may I ask a question,</v>

471
00:18:21.510 --> 00:18:23.250
even though the time is?
<v ->Please.</v>

472
00:18:23.250 --> 00:18:25.260
<v ->Would you like to briefly address</v>

473
00:18:25.260 --> 00:18:29.970
the issue of how your client is an interested party?

474
00:18:29.970 --> 00:18:32.160
<v ->Certainly, as I'm sure Your Honor is aware,</v>

475
00:18:32.160 --> 00:18:35.340
the definition of interested party under Rule 11

476
00:18:35.340 --> 00:18:36.180
is quite narrow.

477
00:18:36.180 --> 00:18:38.040
It simply says, "A non-party,

478
00:18:38.040 --> 00:18:39.810
someone not a party to the lower proceeding

479
00:18:39.810 --> 00:18:40.920
who expresses an interest

480
00:18:40.920 --> 00:18:42.960
and then explains who they are."

481
00:18:42.960 --> 00:18:47.040
So it's not a clear standard to meet.

482
00:18:47.040 --> 00:18:50.430
But my client, as a member of the press,

483
00:18:50.430 --> 00:18:53.460
is certainly interested in his role

484
00:18:53.460 --> 00:18:54.293
as a member of the press.

485
00:18:54.293 --> 00:18:56.610
<v ->Of an interest in a colloquial sense,</v>

486
00:18:56.610 --> 00:18:59.343
we're looking here in a legal sense,

487
00:19:00.276 --> 00:19:02.523
a legal interest in the case, no?

488
00:19:04.350 --> 00:19:06.420
<v ->Rule 11 does not say that.</v>

489
00:19:06.420 --> 00:19:08.520
It says--
<v ->Do we have any cases</v>

490
00:19:08.520 --> 00:19:12.570
that would support your definition of interest,

491
00:19:12.570 --> 00:19:14.250
interested party?

492
00:19:14.250 --> 00:19:15.930
<v ->Well, I think the press is always considered</v>

493
00:19:15.930 --> 00:19:16.920
an interested party

494
00:19:16.920 --> 00:19:19.050
when it comes to the workings of government

495
00:19:19.050 --> 00:19:21.390
and the workings of our government institutions

496
00:19:21.390 --> 00:19:23.760
that the press has consistently been granted access--

497
00:19:23.760 --> 00:19:24.597
<v ->An interested entity,</v>

498
00:19:24.597 --> 00:19:28.380
but maybe not a party, right?

499
00:19:28.380 --> 00:19:31.200
I mean, these words have meaning.

500
00:19:31.200 --> 00:19:32.220
<v Jennifer>Absolutely.</v>

501
00:19:32.220 --> 00:19:33.660
<v ->They have legal meaning.</v>

502
00:19:33.660 --> 00:19:36.120
I'm trying to see-

503
00:19:36.120 --> 00:19:37.440
<v ->Is the definition though-</v>
<v ->if you fit into that.</v>

504
00:19:37.440 --> 00:19:39.123
<v ->limited to interested party,</v>

505
00:19:40.110 --> 00:19:42.510
does the rule refer to interested party

506
00:19:42.510 --> 00:19:43.950
or interested something else?

507
00:19:43.950 --> 00:19:45.307
I can't--
<v ->Rule 11 says,</v>

508
00:19:45.307 --> 00:19:46.650
"An interested person."

509
00:19:46.650 --> 00:19:47.947
It says a, if I remember--
<v ->I thought it was,</v>

510
00:19:47.947 --> 00:19:49.747
"Interested non-party."

511
00:19:49.747 --> 00:19:51.570
<v ->"An interested non-party," that's right.</v>

512
00:19:51.570 --> 00:19:53.253
So it doesn't have to be a party.

513
00:19:54.549 --> 00:19:58.560
It has to be somebody who is able to satisfy the judge there

514
00:19:58.560 --> 00:20:00.390
appearing before by their affidavit

515
00:20:00.390 --> 00:20:02.190
and by the facts that they include

516
00:20:02.190 --> 00:20:03.387
that they have an interest.

517
00:20:03.387 --> 00:20:05.910
And the interest that was put forward here

518
00:20:05.910 --> 00:20:08.490
is by LCMedia.

519
00:20:08.490 --> 00:20:09.570
We are a journalist,

520
00:20:09.570 --> 00:20:11.640
we are deeply invested

521
00:20:11.640 --> 00:20:14.460
in exposing concerns and problems

522
00:20:14.460 --> 00:20:16.890
with the Massachusetts juvenile court system,

523
00:20:16.890 --> 00:20:19.380
and we are seeking access in this specific case,

524
00:20:19.380 --> 00:20:20.640
which has already generated

525
00:20:20.640 --> 00:20:22.710
a considerable amount of public interest

526
00:20:22.710 --> 00:20:23.820
and a considerable amount

527
00:20:23.820 --> 00:20:25.290
of contradictory information,

528
00:20:25.290 --> 00:20:27.720
and we ask for access for that reason.

529
00:20:27.720 --> 00:20:29.370
<v ->Should the definition be different</v>

530
00:20:29.370 --> 00:20:31.710
for parties versus non-parties?

531
00:20:31.710 --> 00:20:33.900
I mean, it should be different than the test

532
00:20:33.900 --> 00:20:35.940
that Justice Gaziano laid out in,

533
00:20:35.940 --> 00:20:37.650
I forget the name of the case,

534
00:20:37.650 --> 00:20:39.050
for parties?

535
00:20:39.050 --> 00:20:40.680
<v ->In MC?</v>
<v ->Yes.</v>

536
00:20:40.680 --> 00:20:44.280
<v ->So it is interesting that Justice Gaziano's opinion in MC</v>

537
00:20:44.280 --> 00:20:48.030
specifically refers to the fact that you use this rule,

538
00:20:48.030 --> 00:20:50.010
you can use Rule 7,

539
00:20:50.010 --> 00:20:53.040
and it's standard for the Commonwealth or parties.

540
00:20:53.040 --> 00:20:57.120
I don't read that as having been to limit

541
00:20:57.120 --> 00:20:58.620
the interested non-party

542
00:20:58.620 --> 00:21:00.810
from being able to have involvement.

543
00:21:00.810 --> 00:21:03.030
But so perhaps MC needs to be expanded

544
00:21:03.030 --> 00:21:08.030
in terms of how the reach of the UROP

545
00:21:08.100 --> 00:21:10.700
goes beyond just parties, but...

546
00:21:12.990 --> 00:21:15.264
<v ->Thank you, counsel.</v>
<v ->Thank you very much.</v>

547
00:21:15.264 --> 00:21:18.014
(pages rustling)

548
00:21:28.530 --> 00:21:29.970
<v ->Attorney Brathwaite.</v>

549
00:21:29.970 --> 00:21:30.930
<v ->Good morning, Your Honors.</v>

550
00:21:30.930 --> 00:21:32.250
May it please the court,

551
00:21:32.250 --> 00:21:33.090
I'm Kristin Brathwaite

552
00:21:33.090 --> 00:21:35.130
for the Department of Children and Families.

553
00:21:35.130 --> 00:21:37.920
Your Honors, there's only one question before you today,

554
00:21:37.920 --> 00:21:40.320
and that is whether the lower court abused its discretion

555
00:21:40.320 --> 00:21:41.460
in finding that appellant

556
00:21:41.460 --> 00:21:43.620
did not meet its burden of showing good cause

557
00:21:43.620 --> 00:21:45.810
to pierce the veil of confidentiality,

558
00:21:45.810 --> 00:21:48.420
the blankets juvenile court proceedings.

559
00:21:48.420 --> 00:21:49.530
I'm here today to ask you

560
00:21:49.530 --> 00:21:51.030
to affirm the lower court's holding

561
00:21:51.030 --> 00:21:53.130
that appellant did not demonstrate good cause

562
00:21:53.130 --> 00:21:55.830
under Rule 7 of the Uniform Rules of Impoundment

563
00:21:55.830 --> 00:21:57.690
and the disclosure of audio recordings

564
00:21:57.690 --> 00:22:00.450
would violate juvenile court standing order--

565
00:22:00.450 --> 00:22:03.630
<v ->If this case doesn't rise to the level</v>

566
00:22:03.630 --> 00:22:07.410
where the public has the right to know,

567
00:22:07.410 --> 00:22:09.603
I'm just not sure what case would.

568
00:22:11.910 --> 00:22:16.260
We've got a little girl's been killed

569
00:22:16.260 --> 00:22:21.030
because of errors that we've recognized here,

570
00:22:21.030 --> 00:22:25.650
but we haven't fully divulged or disclosed.

571
00:22:25.650 --> 00:22:30.650
So doesn't this require complete or more disclosure?

572
00:22:33.060 --> 00:22:36.570
'Cause the public doesn't trust government

573
00:22:36.570 --> 00:22:39.330
to have done this properly

574
00:22:39.330 --> 00:22:42.030
unless it can review all the facts

575
00:22:42.030 --> 00:22:44.733
or more facts than have been presented so far.

576
00:22:45.720 --> 00:22:48.270
<v ->So the answer I would say is no,</v>

577
00:22:48.270 --> 00:22:50.010
it doesn't rise to the level.

578
00:22:50.010 --> 00:22:51.746
I think it does--
<v ->Oh, this one doesn't?</v>

579
00:22:51.746 --> 00:22:53.070
(Kafker laughing)
<v ->I think it rose</v>

580
00:22:53.070 --> 00:22:54.240
to the level in the sense

581
00:22:54.240 --> 00:22:56.100
that there is an oversight agency

582
00:22:56.100 --> 00:22:57.750
that looks at cases such as this

583
00:22:57.750 --> 00:22:58.583
where the public does require--

584
00:22:58.583 --> 00:23:00.720
<v ->But the public doesn't have to rely</v>

585
00:23:00.720 --> 00:23:05.160
on an executive branch agency to do the vetting.

586
00:23:05.160 --> 00:23:10.160
Usually the public relies on the press.

587
00:23:10.260 --> 00:23:11.490
<v ->That's true in cases</v>

588
00:23:11.490 --> 00:23:13.440
that do not occur in juvenile court,

589
00:23:13.440 --> 00:23:14.458
but in juvenile court,

590
00:23:14.458 --> 00:23:15.300
we are--
<v ->Right, so what is</v>

591
00:23:15.300 --> 00:23:19.020
the continuing privacy interest

592
00:23:19.020 --> 00:23:21.960
of anybody who's implicated

593
00:23:21.960 --> 00:23:24.960
by the February, 2019 hearing,

594
00:23:24.960 --> 00:23:26.130
which is, I understand,

595
00:23:26.130 --> 00:23:28.080
that the only thing that's at issue?

596
00:23:28.080 --> 00:23:30.030
<v ->So first I wanna address</v>

597
00:23:30.030 --> 00:23:32.130
the child's continued privacy interest

598
00:23:32.130 --> 00:23:33.660
because I think these privacy interests

599
00:23:33.660 --> 00:23:35.187
are at the heart of this case.

600
00:23:35.187 --> 00:23:37.590
And I wanna be clear that there is no showing

601
00:23:37.590 --> 00:23:40.410
that's been made that death extinguishes privacy right.

602
00:23:40.410 --> 00:23:41.243
<v Gaziano>Just to be clear,</v>

603
00:23:41.243 --> 00:23:43.383
you're applying the MC standard, correct?

604
00:23:44.460 --> 00:23:46.140
<v ->I'm applying the MC standard.</v>

605
00:23:46.140 --> 00:23:48.300
I think that that certainly identifies

606
00:23:48.300 --> 00:23:50.820
the issues for consideration before the court.

607
00:23:50.820 --> 00:23:52.800
<v Gaziano>Do you concede it applies in this case?</v>

608
00:23:52.800 --> 00:23:56.520
<v ->I don't concede it necessarily applies in this case.</v>

609
00:23:56.520 --> 00:23:57.657
It's complicated.
<v ->Why not?</v>

610
00:23:57.657 --> 00:23:58.800
<v ->MC1 is very clear</v>

611
00:23:58.800 --> 00:24:01.140
that this applies only to parties

612
00:24:01.140 --> 00:24:02.670
and to the Commonwealth.

613
00:24:02.670 --> 00:24:05.130
MC1 also is clear that Rule 11

614
00:24:05.130 --> 00:24:07.410
does apply to juvenile court records.

615
00:24:07.410 --> 00:24:10.680
So I don't think clarification has been made

616
00:24:10.680 --> 00:24:12.720
about whether this is the test to apply.

617
00:24:12.720 --> 00:24:13.740
<v Wendlandt>Well, should it?</v>

618
00:24:13.740 --> 00:24:16.020
What would be the alternative test?

619
00:24:16.020 --> 00:24:18.060
<v ->So in this particular set of circumstances,</v>

620
00:24:18.060 --> 00:24:18.893
the alternative test--

621
00:24:18.893 --> 00:24:21.443
<v ->Well, it can't be a test based on each different case.</v>

622
00:24:21.443 --> 00:24:25.260
What is the test for an interested non-party?

623
00:24:25.260 --> 00:24:27.330
<v ->So in this particular circumstances,</v>

624
00:24:27.330 --> 00:24:29.640
I only mean in the juvenile court context,

625
00:24:29.640 --> 00:24:32.340
you have Standing Order 2-09,

626
00:24:32.340 --> 00:24:35.340
which discusses the means to access audio recordings

627
00:24:35.340 --> 00:24:36.870
in a closed proceeding.

628
00:24:36.870 --> 00:24:39.120
They're made available in appellate matters.

629
00:24:39.120 --> 00:24:41.070
And then if there is another reason for them,

630
00:24:41.070 --> 00:24:43.320
similarly to the Rule 7 procedure,

631
00:24:43.320 --> 00:24:44.610
an affidavit is filed,

632
00:24:44.610 --> 00:24:46.650
and then the judge has discretion

633
00:24:46.650 --> 00:24:47.700
to make a determination

634
00:24:47.700 --> 00:24:50.880
either with or without a hearing, and--

635
00:24:50.880 --> 00:24:53.310
<v ->Using what standard?</v>
<v ->Right.</v>

636
00:24:53.310 --> 00:24:56.580
<v ->So the order itself--</v>

637
00:24:56.580 --> 00:24:57.840
<v ->Well, of course, it doesn't lay it out.</v>

638
00:24:57.840 --> 00:25:01.530
The question is only whether the factors

639
00:25:01.530 --> 00:25:03.270
that are ordinarily used

640
00:25:03.270 --> 00:25:06.780
for lifting of impoundment or impounding

641
00:25:06.780 --> 00:25:09.510
should apply in this context

642
00:25:09.510 --> 00:25:10.770
with the statute order

643
00:25:10.770 --> 00:25:13.560
is that these proceedings are confidential.

644
00:25:13.560 --> 00:25:15.420
<v ->I would believe that it does.</v>

645
00:25:15.420 --> 00:25:16.920
And the reason I would believe that it does

646
00:25:16.920 --> 00:25:19.530
is because it clearly lays out the factors

647
00:25:19.530 --> 00:25:22.050
that have been identified as relevant for consideration

648
00:25:22.050 --> 00:25:24.480
in determining whether juvenile court records

649
00:25:24.480 --> 00:25:25.950
should be un-impounded.

650
00:25:25.950 --> 00:25:30.000
With that said, the first test we look to

651
00:25:30.000 --> 00:25:32.400
is the nature of the parties in the controversy.

652
00:25:32.400 --> 00:25:33.720
And I think that the fact

653
00:25:33.720 --> 00:25:36.780
that this is a non-party seeking access

654
00:25:36.780 --> 00:25:39.270
is highly relevant to the balancing act of that.

655
00:25:39.270 --> 00:25:42.570
<v ->But you're referring to the privacy interest</v>

656
00:25:42.570 --> 00:25:44.520
of the child who's been killed.

657
00:25:44.520 --> 00:25:46.713
Isn't the (laughing) child's interest,

658
00:25:47.769 --> 00:25:50.523
to the extent we can discern the child's interest,

659
00:25:50.523 --> 00:25:52.560
it's not in her privacy,

660
00:25:52.560 --> 00:25:56.160
but in making sure that this never happens again

661
00:25:56.160 --> 00:25:57.510
what happened to her?

662
00:25:57.510 --> 00:25:58.770
Isn't that her interest?

663
00:25:58.770 --> 00:26:01.380
I don't understand what her privacy interest is.

664
00:26:01.380 --> 00:26:03.990
<v ->Well, there's not been any case law or statute</v>

665
00:26:03.990 --> 00:26:06.090
that has extinguished privacy interest at death.

666
00:26:06.090 --> 00:26:07.080
And quite the opposite,

667
00:26:07.080 --> 00:26:08.700
I would actually direct the panel

668
00:26:08.700 --> 00:26:13.230
to the area of attorney client confidentiality.

669
00:26:13.230 --> 00:26:15.540
And in particular, I direct the court

670
00:26:15.540 --> 00:26:18.600
to Swidler &amp; Berlin versus United States,

671
00:26:18.600 --> 00:26:20.400
wherein the Supreme Court of the United States

672
00:26:20.400 --> 00:26:22.200
pointed to the ongoing issues

673
00:26:22.200 --> 00:26:23.857
of someone who's been deceased,

674
00:26:23.857 --> 00:26:25.770
"Of reputation, liability,"

675
00:26:25.770 --> 00:26:27.637
and this is particularly important here,

676
00:26:27.637 --> 00:26:29.850
"harm to family and loved ones

677
00:26:29.850 --> 00:26:31.254
to justify maintaining

678
00:26:31.254 --> 00:26:33.720
posthumous confidentiality."
<v ->But I mean,</v>

679
00:26:33.720 --> 00:26:34.933
does that really fit here,

680
00:26:34.933 --> 00:26:39.933
where the father has been convicted of killing the child,

681
00:26:40.290 --> 00:26:44.730
the child is deceased,

682
00:26:44.730 --> 00:26:48.573
and the obvious interest is protecting,

683
00:26:49.680 --> 00:26:51.720
making sure this (laughing) child hasn't died in vain,

684
00:26:51.720 --> 00:26:53.970
that we're not gonna do this again ever,

685
00:26:53.970 --> 00:26:56.310
we're gonna do everything humanly possible

686
00:26:56.310 --> 00:26:59.400
to not make the same mistakes again, right?

687
00:26:59.400 --> 00:27:00.780
Isn't that the (laughing) legitimate interest here?

688
00:27:00.780 --> 00:27:03.120
<v ->Well, it is a legitimate interest.</v>

689
00:27:03.120 --> 00:27:05.910
I don't know that it is appellant's legitimate interest,

690
00:27:05.910 --> 00:27:07.770
but it's certainly the state's legitimate interest.

691
00:27:07.770 --> 00:27:12.330
<v ->But if DCF is opposed</v>

692
00:27:12.330 --> 00:27:16.410
to allowing this information forward,

693
00:27:16.410 --> 00:27:20.130
the father is prepared to have this disclosed,

694
00:27:20.130 --> 00:27:22.740
the mother has certain residual privacy interests,

695
00:27:22.740 --> 00:27:24.390
which I'm trying to understand,

696
00:27:24.390 --> 00:27:29.010
but the person best serving not repeating this

697
00:27:29.010 --> 00:27:30.903
seems to be the press.

698
00:27:32.490 --> 00:27:33.890
<v Kristin>The law around--</v>

699
00:27:34.980 --> 00:27:37.530
<v ->Responsible press,</v>

700
00:27:37.530 --> 00:27:40.290
trying to figure out what happened

701
00:27:40.290 --> 00:27:42.600
would seem to be protecting

702
00:27:42.600 --> 00:27:44.760
that child's interest, isn't it?

703
00:27:44.760 --> 00:27:48.180
<v ->Not in the current statutory or case law framework</v>

704
00:27:48.180 --> 00:27:49.890
that governs juvenile court records.

705
00:27:49.890 --> 00:27:52.560
I would direct the panel to--

706
00:27:52.560 --> 00:27:54.603
<v ->But it creates exceptions,</v>

707
00:27:55.437 --> 00:27:59.250
and this seems to be the exceptional case.

708
00:27:59.250 --> 00:28:00.867
<v ->Well, I think--</v>
<v ->It's not the ordinary case.</v>

709
00:28:00.867 --> 00:28:03.750
<v ->The reason appellant suggests this is an exceptional case,</v>

710
00:28:03.750 --> 00:28:05.910
and I know this is brought up in amicus briefs as well,

711
00:28:05.910 --> 00:28:07.860
is because here the child died,

712
00:28:07.860 --> 00:28:08.790
but I would direct--

713
00:28:08.790 --> 00:28:10.290
<v ->The child didn't just die,</v>

714
00:28:10.290 --> 00:28:12.060
the child was killed

715
00:28:12.060 --> 00:28:15.960
after the child was given to the person,

716
00:28:15.960 --> 00:28:18.900
the state delivered the child

717
00:28:18.900 --> 00:28:20.727
to the person who killed him, right?

718
00:28:20.727 --> 00:28:23.100
And that was the father.

719
00:28:23.100 --> 00:28:24.840
It's a complicated--

720
00:28:24.840 --> 00:28:27.570
<v ->Right, which the state opposed.</v>

721
00:28:27.570 --> 00:28:28.410
<v ->The state did oppose.</v>

722
00:28:28.410 --> 00:28:31.923
<v ->So you can see the optics of that, right?</v>

723
00:28:34.233 --> 00:28:35.820
The child was delivered

724
00:28:35.820 --> 00:28:38.400
to the very person DCF

725
00:28:38.400 --> 00:28:41.280
opposed the child being delivered to,

726
00:28:41.280 --> 00:28:43.680
and then this tragedy happened.

727
00:28:43.680 --> 00:28:48.680
So why isn't the sunshine sanitation of this be,

728
00:28:49.957 --> 00:28:52.200
"Let's see what happened, open it up?"

729
00:28:52.200 --> 00:28:55.500
<v ->Because the intimate nature of the details</v>

730
00:28:55.500 --> 00:28:57.930
that exist in care and protection cases

731
00:28:57.930 --> 00:28:59.247
warrant confidentiality.

732
00:28:59.247 --> 00:29:00.480
<v ->But under that rule,</v>

733
00:29:00.480 --> 00:29:05.480
we would never allow care and protection proceedings

734
00:29:06.090 --> 00:29:08.370
to be open.

735
00:29:08.370 --> 00:29:12.810
And I think Justice Kafker's point is well taken

736
00:29:12.810 --> 00:29:17.490
that this is one of those extreme cases

737
00:29:17.490 --> 00:29:21.647
where maybe the veil of privacy should be pierced

738
00:29:22.950 --> 00:29:27.950
in order for the betterment of these placement decisions.

739
00:29:30.540 --> 00:29:32.340
<v ->In the event that this court</v>

740
00:29:32.340 --> 00:29:34.080
feels that this is one of those cases,

741
00:29:34.080 --> 00:29:35.610
I would suggest this is an instance,

742
00:29:35.610 --> 00:29:37.290
like Care and Protection of Sharlene,

743
00:29:37.290 --> 00:29:40.740
where the decision would still need to comply with the laws

744
00:29:40.740 --> 00:29:41.580
as it stands now,

745
00:29:41.580 --> 00:29:43.470
but perhaps the legislature--

746
00:29:43.470 --> 00:29:45.510
<v ->But the law as it stands now has,</v>

747
00:29:45.510 --> 00:29:46.650
as you've conceded,

748
00:29:46.650 --> 00:29:48.510
these five factors to be weighed

749
00:29:48.510 --> 00:29:51.360
in order to pierce that privacy veil

750
00:29:51.360 --> 00:29:54.810
under the statute in weighing those factors.

751
00:29:54.810 --> 00:29:57.180
I can't imagine a case

752
00:29:57.180 --> 00:30:02.180
that calls for piercing that more than this one.

753
00:30:02.280 --> 00:30:03.840
<v ->Well, the privacy--</v>
<v ->Given that the child</v>

754
00:30:03.840 --> 00:30:07.020
was killed at the hands of the person

755
00:30:07.020 --> 00:30:10.200
with whom the child was placed,

756
00:30:10.200 --> 00:30:14.130
that person is asserting no privacy interests.

757
00:30:14.130 --> 00:30:16.500
And it's still not clear to me

758
00:30:16.500 --> 00:30:20.040
what the mother's residual privacy interests are.

759
00:30:20.040 --> 00:30:23.490
It hasn't been articulated in any way.

760
00:30:23.490 --> 00:30:26.820
Certainly the media can't say what those interests are

761
00:30:26.820 --> 00:30:28.470
given that they don't have access

762
00:30:28.470 --> 00:30:32.400
to the proceedings that they're trying to get to,

763
00:30:32.400 --> 00:30:36.000
and I haven't seen that articulated by DCF.

764
00:30:36.000 --> 00:30:38.010
<v ->Well, as far as mother's privacy rights,</v>

765
00:30:38.010 --> 00:30:40.260
I mean, and I'll allow my brother to speak more on this,

766
00:30:40.260 --> 00:30:41.280
but her privacy rights

767
00:30:41.280 --> 00:30:43.440
were certainly not extinguished at any point.

768
00:30:43.440 --> 00:30:45.360
And she is a party to this matter,

769
00:30:45.360 --> 00:30:47.130
it's her intimate detail.
<v ->But as to</v>

770
00:30:47.130 --> 00:30:49.920
the February, 2019 hearing,

771
00:30:49.920 --> 00:30:51.420
which is, as I understand it,

772
00:30:51.420 --> 00:30:52.773
the only thing at issue,

773
00:30:54.176 --> 00:30:57.300
what is it about mother's privacy that continues?

774
00:30:57.300 --> 00:31:01.680
And maybe that's better directed at counsel for mom.

775
00:31:01.680 --> 00:31:03.510
<v ->Well, I'm not sure if I fully follow</v>

776
00:31:03.510 --> 00:31:04.410
what you mean about what is--

777
00:31:04.410 --> 00:31:05.910
<v ->Well, I'm trying to figure out,</v>

778
00:31:05.910 --> 00:31:07.110
one of the things that we need to do

779
00:31:07.110 --> 00:31:09.780
is balance the continuing privacy, right?

780
00:31:09.780 --> 00:31:11.580
The child has been murdered,

781
00:31:11.580 --> 00:31:14.943
the father is not here saying,

782
00:31:15.907 --> 00:31:20.907
"Don't release this February, 2019 hearing audio,"

783
00:31:21.300 --> 00:31:22.740
and the only person

784
00:31:22.740 --> 00:31:24.420
who has standing to assert it,

785
00:31:24.420 --> 00:31:29.420
as I understand it, under the five factors, is mom.

786
00:31:29.910 --> 00:31:30.780
And so I'm wondering

787
00:31:30.780 --> 00:31:33.600
what mom's continuing privacy interest is

788
00:31:33.600 --> 00:31:36.240
in the February, 2019 hearing.

789
00:31:36.240 --> 00:31:38.570
<v ->So mother's continuing privacy interest</v>

790
00:31:38.570 --> 00:31:41.520
in the 2019 hearing

791
00:31:41.520 --> 00:31:44.100
are that there's information in that hearing

792
00:31:44.100 --> 00:31:45.990
that has not been publicly disclosed.

793
00:31:45.990 --> 00:31:48.480
And in fact, the OCA report explicitly acknowledges

794
00:31:48.480 --> 00:31:52.320
that some information was too private to disclose, and I--

795
00:31:52.320 --> 00:31:54.570
<v Wendlandt>In that February, 2019 hearing?</v>

796
00:31:54.570 --> 00:31:57.540
<v ->That February of 2019 hearing.</v>

797
00:31:57.540 --> 00:31:59.340
And I would direct the panel here

798
00:31:59.340 --> 00:32:01.230
to Commonwealth v. Roderick,

799
00:32:01.230 --> 00:32:02.610
which stands for the proposition

800
00:32:02.610 --> 00:32:03.720
that an individual may lose

801
00:32:03.720 --> 00:32:05.400
his or her expectation of privacy

802
00:32:05.400 --> 00:32:06.720
in some information

803
00:32:06.720 --> 00:32:09.300
and yet retain an expectation of privacy

804
00:32:09.300 --> 00:32:11.820
in separate material distinct information.

805
00:32:11.820 --> 00:32:13.440
<v ->Where does the OCA report</v>

806
00:32:13.440 --> 00:32:17.160
say that mom had some privacy interest

807
00:32:17.160 --> 00:32:19.770
in the February, 2019 hearing?

808
00:32:19.770 --> 00:32:22.110
<v ->The OCA report does not distinguish</v>

809
00:32:22.110 --> 00:32:23.760
between where her ongoing

810
00:32:23.760 --> 00:32:25.710
privacy interest existed.
<v ->Well, see, that seems</v>

811
00:32:25.710 --> 00:32:27.450
to me problematic for your position

812
00:32:27.450 --> 00:32:29.370
because the 2019 hearing

813
00:32:29.370 --> 00:32:30.990
is the only one that's at issue.

814
00:32:30.990 --> 00:32:33.000
<v ->But the 2019 hearing</v>

815
00:32:33.000 --> 00:32:34.980
was detailed at length

816
00:32:34.980 --> 00:32:36.840
procedurally in how it went down.

817
00:32:36.840 --> 00:32:38.917
And the OCA report at the outset said,

818
00:32:38.917 --> 00:32:40.980
"We're revealing the confidential information

819
00:32:40.980 --> 00:32:42.570
that we think that the public needs to know

820
00:32:42.570 --> 00:32:44.190
in order to know what happened.

821
00:32:44.190 --> 00:32:46.170
We are withholding that information

822
00:32:46.170 --> 00:32:48.325
that is so intimate as it would be."

823
00:32:48.325 --> 00:32:49.158
<v ->Can I ask you,</v>

824
00:32:49.158 --> 00:32:53.250
is your position on empowerment absolute

825
00:32:53.250 --> 00:32:55.200
or are there instances

826
00:32:55.200 --> 00:32:57.240
where it would give way?

827
00:32:57.240 --> 00:32:59.460
<v ->There are instances where it would give way.</v>

828
00:32:59.460 --> 00:33:01.800
I mean--
<v ->Tell me those instances.</v>

829
00:33:01.800 --> 00:33:03.780
<v ->Well, it's hard, it's all hypothetical,</v>

830
00:33:03.780 --> 00:33:06.900
but for example, in the cases that we have before us,

831
00:33:06.900 --> 00:33:08.850
we see people try to use these records

832
00:33:08.850 --> 00:33:10.800
for their own criminal defense.

833
00:33:10.800 --> 00:33:12.480
Those make a little bit more sense to me,

834
00:33:12.480 --> 00:33:14.790
they seem to have more entitlement to the records.

835
00:33:14.790 --> 00:33:16.800
I mean, under any analysis,

836
00:33:16.800 --> 00:33:20.190
there is no freedom of access to these records.

837
00:33:20.190 --> 00:33:21.720
And so then--
<v ->Just the narrow</v>

838
00:33:21.720 --> 00:33:25.320
MC situation in your view?
<v ->It's a narrow MC situation,</v>

839
00:33:25.320 --> 00:33:27.960
which I would argue is even narrower than MC

840
00:33:27.960 --> 00:33:29.370
because the court and MC,

841
00:33:29.370 --> 00:33:31.260
as I know Your Honor is aware,

842
00:33:31.260 --> 00:33:33.270
was clear that the test laid out today

843
00:33:33.270 --> 00:33:35.160
applies to parties and the Commonwealth.

844
00:33:35.160 --> 00:33:37.950
Here we have an uninterested party who has every right

845
00:33:37.950 --> 00:33:38.879
to intervene.
<v ->Okay, so under</v>

846
00:33:38.879 --> 00:33:40.993
your absolute rule,

847
00:33:40.993 --> 00:33:42.865
there's wiggle room as you see it

848
00:33:42.865 --> 00:33:45.570
for parties who need the records for criminal defense.

849
00:33:45.570 --> 00:33:46.743
Any other instances?

850
00:33:47.580 --> 00:33:48.810
<v ->I could certainly imagine</v>

851
00:33:48.810 --> 00:33:50.610
that there would be instances.

852
00:33:50.610 --> 00:33:52.680
It's so hypothetical, so it's hard to answer.

853
00:33:52.680 --> 00:33:55.020
But for example, was there a concern

854
00:33:55.020 --> 00:33:59.400
that perhaps something in the February, 2019 hearing

855
00:33:59.400 --> 00:34:00.720
might give us information

856
00:34:00.720 --> 00:34:03.000
about where this particular child was

857
00:34:03.000 --> 00:34:04.860
during the time she was presumed missing?

858
00:34:04.860 --> 00:34:07.083
Which in fact is, in Massachusetts--

859
00:34:07.083 --> 00:34:10.560
<v ->But how do they know</v>

860
00:34:10.560 --> 00:34:14.010
if they've not been given that information to look at?

861
00:34:14.010 --> 00:34:17.250
We're trusting the Office for Children

862
00:34:17.250 --> 00:34:19.020
and we're asking the public

863
00:34:19.020 --> 00:34:22.440
to trust the Office for Children. (laughing)

864
00:34:22.440 --> 00:34:23.820
<v ->Again, I would direct the court</v>

865
00:34:23.820 --> 00:34:25.440
to Care and Protection of Sharlene,

866
00:34:25.440 --> 00:34:27.390
which is clear that even though

867
00:34:27.390 --> 00:34:30.360
there is interest in these records,

868
00:34:30.360 --> 00:34:31.380
they are impounded,

869
00:34:31.380 --> 00:34:33.150
it does not run afoul of the First Amendment.

870
00:34:33.150 --> 00:34:35.550
And here I'd also just--
<v ->Wasn't Sharlene</v>

871
00:34:35.550 --> 00:34:39.750
the father wanted, on behalf of the public,

872
00:34:39.750 --> 00:34:42.330
somehow he wanted to say

873
00:34:42.330 --> 00:34:45.000
these records should be public

874
00:34:45.000 --> 00:34:49.140
when in fact he was the cause of Sharlene,

875
00:34:49.140 --> 00:34:50.940
the child in that case,

876
00:34:50.940 --> 00:34:52.530
being in a coma?

877
00:34:52.530 --> 00:34:53.880
<v ->Yes, but the--</v>
<v ->So I think that</v>

878
00:34:53.880 --> 00:34:57.990
the court was struck by the perversity of that position

879
00:34:57.990 --> 00:34:59.880
and questioned even whether the father

880
00:34:59.880 --> 00:35:02.040
had standing on behalf of the public.

881
00:35:02.040 --> 00:35:04.020
You're not suggesting that LCMedia

882
00:35:04.020 --> 00:35:06.000
doesn't have standing on behalf?

883
00:35:06.000 --> 00:35:07.500
<v Kristin>I'm not suggesting that LCMedia</v>

884
00:35:07.500 --> 00:35:08.700
doesn't have standing on behalf

885
00:35:08.700 --> 00:35:09.600
of the public.
<v ->So how does Sharlene</v>

886
00:35:09.600 --> 00:35:10.433
help us here?

887
00:35:10.433 --> 00:35:12.480
<v ->But how Sharlene helps us here</v>

888
00:35:12.480 --> 00:35:13.770
is that it distinguishes

889
00:35:13.770 --> 00:35:16.740
that even though there may be a desire

890
00:35:16.740 --> 00:35:18.570
to release some information,

891
00:35:18.570 --> 00:35:20.700
it cannot be under the statutory scheme.

892
00:35:20.700 --> 00:35:22.530
This is a legislative question.

893
00:35:22.530 --> 00:35:25.447
Sharlene ultimately comes down and says,

894
00:35:25.447 --> 00:35:27.540
"We think some of this should be made available.

895
00:35:27.540 --> 00:35:29.640
It can't be under the current state of the law."

896
00:35:29.640 --> 00:35:30.540
And I would argue

897
00:35:30.540 --> 00:35:32.340
the same holds true.
<v ->Because father,</v>

898
00:35:32.340 --> 00:35:35.370
when you look at the balancing tests in that case,

899
00:35:35.370 --> 00:35:37.230
just didn't make a showing.

900
00:35:37.230 --> 00:35:40.320
<v ->But I would again remind the panel</v>

901
00:35:40.320 --> 00:35:42.630
that we're looking at an abuse of discretion standard.

902
00:35:42.630 --> 00:35:44.467
This isn't the case where the judge simply said,

903
00:35:44.467 --> 00:35:46.140
"Denied," and we don't know why.

904
00:35:46.140 --> 00:35:47.400
She looked at the record,

905
00:35:47.400 --> 00:35:49.200
she balanced these factors,

906
00:35:49.200 --> 00:35:50.490
she made a decision.

907
00:35:50.490 --> 00:35:52.350
<v ->And can I ask, was it the same?</v>

908
00:35:52.350 --> 00:35:53.550
I'm trying to figure out,

909
00:35:53.550 --> 00:35:54.870
is the same judge-

910
00:35:54.870 --> 00:35:56.280
<v ->Yes.</v>
<v ->the custody judge,</v>

911
00:35:56.280 --> 00:36:00.150
as well as the judge in this decision?

912
00:36:00.150 --> 00:36:02.160
<v ->Mm-hmm.</v>
<v ->The judge who presided</v>

913
00:36:02.160 --> 00:36:04.410
over the February, 2019 hearing

914
00:36:04.410 --> 00:36:05.730
is no longer on the bench.

915
00:36:05.730 --> 00:36:08.520
So it was a sitting judge in the same court

916
00:36:08.520 --> 00:36:10.503
who actually did have,

917
00:36:11.910 --> 00:36:15.420
at times, she is reflected on the docket when it existed,

918
00:36:15.420 --> 00:36:16.960
but she was not the judge

919
00:36:16.960 --> 00:36:18.510
who made that--
<v ->It wasn't clear to me.</v>

920
00:36:18.510 --> 00:36:19.500
Sorry.
<v ->Sorry,</v>

921
00:36:19.500 --> 00:36:20.400
I just wanna make sure,

922
00:36:20.400 --> 00:36:22.230
so the judge who did the second decision

923
00:36:22.230 --> 00:36:25.530
is not the judge who did the custody decision

924
00:36:25.530 --> 00:36:27.870
allowing the child to go to the father?

925
00:36:27.870 --> 00:36:29.007
<v Kristin>Those are two different judges.</v>

926
00:36:29.007 --> 00:36:30.450
<v ->Two different judges.</v>
<v ->Although this judge</v>

927
00:36:30.450 --> 00:36:32.370
was involved in expediting

928
00:36:32.370 --> 00:36:34.983
the Interstate Compact report?

929
00:36:36.150 --> 00:36:38.250
<v ->This judge may have,</v>

930
00:36:38.250 --> 00:36:41.040
she was not the presiding judge of this case.

931
00:36:41.040 --> 00:36:42.540
And I don't have the docket to reflect.

932
00:36:42.540 --> 00:36:43.710
I can't--
<v ->I think the record</v>

933
00:36:43.710 --> 00:36:45.251
clearly shows she was the judge

934
00:36:45.251 --> 00:36:47.820
in the earlier decision.
<v ->So I know</v>

935
00:36:47.820 --> 00:36:48.960
she had involvement in the case,

936
00:36:48.960 --> 00:36:50.640
but she was not the one who presided

937
00:36:50.640 --> 00:36:52.070
over the February, 2019 hearing.

938
00:36:52.070 --> 00:36:53.970
<v ->It was not clear to me,</v>

939
00:36:53.970 --> 00:36:57.900
but perhaps it's clear somewhere else,

940
00:36:57.900 --> 00:36:59.310
but I didn't see it,

941
00:36:59.310 --> 00:37:01.710
that the judge reviewed the audio

942
00:37:01.710 --> 00:37:05.610
of the February, 2019 hearing.

943
00:37:05.610 --> 00:37:08.070
That was not clear to me from the decision.

944
00:37:08.070 --> 00:37:12.060
Do you know whether in fact the judge did?

945
00:37:12.060 --> 00:37:14.790
<v ->I don't know whether in fact she did with certainty,</v>

946
00:37:14.790 --> 00:37:17.760
but I can say that one line she says in her argument

947
00:37:17.760 --> 00:37:19.830
is that there was information

948
00:37:19.830 --> 00:37:22.440
that was too intimate to release in the hearing.

949
00:37:22.440 --> 00:37:23.910
So that leads me to believe

950
00:37:23.910 --> 00:37:25.050
she would've been basing that

951
00:37:25.050 --> 00:37:26.670
on having listened to it.

952
00:37:26.670 --> 00:37:29.010
With that said, I do not believe she asserts anywhere

953
00:37:29.010 --> 00:37:30.060
that she did.

954
00:37:30.060 --> 00:37:33.150
<v ->So that feels to me like a hard thing then</v>

955
00:37:33.150 --> 00:37:35.613
to know how the balancing was done.

956
00:37:36.450 --> 00:37:38.910
<v ->Well, I think she spells out her view</v>

957
00:37:38.910 --> 00:37:39.930
of the balancing act.

958
00:37:39.930 --> 00:37:41.280
And I agree that people

959
00:37:41.280 --> 00:37:43.920
may be able to have different conclusions,

960
00:37:43.920 --> 00:37:45.840
but I don't think it rises to the level

961
00:37:45.840 --> 00:37:48.660
that no conscientious judge acting intelligently

962
00:37:48.660 --> 00:37:50.310
could honestly have reached such a decision.

963
00:37:50.310 --> 00:37:52.733
And I would also like to ask the panel to look to--

964
00:37:52.733 --> 00:37:55.290
<v Kafker>Is that the old abuse of discretion standard</v>

965
00:37:55.290 --> 00:37:56.123
you're reading from

966
00:37:56.123 --> 00:37:56.956
or the new one?

967
00:37:56.956 --> 00:37:58.830
<v ->That's from Care and Protection of Georgette?</v>

968
00:37:58.830 --> 00:37:59.970
It's been modified a little bit,

969
00:37:59.970 --> 00:38:01.980
but another one we could look at that--

970
00:38:01.980 --> 00:38:03.030
<v Gaziano>We'll look at LL,</v>

971
00:38:03.030 --> 00:38:05.190
which is our abuse of discretion standard.

972
00:38:05.190 --> 00:38:06.450
<v ->Fair, but even still,</v>

973
00:38:06.450 --> 00:38:08.670
I really don't think you could find

974
00:38:08.670 --> 00:38:10.110
this judge did not meet that standard.

975
00:38:10.110 --> 00:38:11.550
She held a hearing,

976
00:38:11.550 --> 00:38:14.100
she ruled on each factor,

977
00:38:14.100 --> 00:38:15.060
she waived them.

978
00:38:15.060 --> 00:38:16.590
And again, I would also,

979
00:38:16.590 --> 00:38:17.850
I know it is not binding,

980
00:38:17.850 --> 00:38:20.850
but I would also like to just direct the panel

981
00:38:20.850 --> 00:38:23.670
to it's Adoption of Gemma.

982
00:38:23.670 --> 00:38:24.930
It is un-binding,

983
00:38:24.930 --> 00:38:26.940
it's a Rule 128 unpublished opinion,

984
00:38:26.940 --> 00:38:29.520
but it's an instance where a foster parent sought records,

985
00:38:29.520 --> 00:38:32.760
and the fact that the foster parent was not a party

986
00:38:32.760 --> 00:38:34.320
was part of the balancing act.

987
00:38:34.320 --> 00:38:36.120
They still did a Rule 7 analysis,

988
00:38:36.120 --> 00:38:37.800
but found that it was relevant.

989
00:38:37.800 --> 00:38:39.270
<v Wendlandt>Can I ask you logistically?</v>

990
00:38:39.270 --> 00:38:41.580
I'm sorry.
<v ->Please.</v>

991
00:38:41.580 --> 00:38:43.500
<v ->As a logistic matter,</v>

992
00:38:43.500 --> 00:38:45.420
assume for a moment,

993
00:38:45.420 --> 00:38:47.280
and I have no reason to believe this is true,

994
00:38:47.280 --> 00:38:49.740
that this panel believes that the case should be remanded

995
00:38:49.740 --> 00:38:52.980
for a rebalancing of the five factors

996
00:38:52.980 --> 00:38:55.110
and actual listening to the audio

997
00:38:55.110 --> 00:38:57.810
of the February, 2019 hearing

998
00:38:57.810 --> 00:38:59.343
confirmation of that fact,

999
00:39:01.500 --> 00:39:05.610
is there a way to redact things from the hearing?

1000
00:39:05.610 --> 00:39:06.990
Is that possible

1001
00:39:06.990 --> 00:39:11.990
given the use that this journalist expects to make

1002
00:39:12.630 --> 00:39:15.390
of the transcript?

1003
00:39:15.390 --> 00:39:18.750
The reason I ask is because it seems like in MC

1004
00:39:18.750 --> 00:39:22.560
there was allowance for access for,

1005
00:39:22.560 --> 00:39:24.360
I think it was the defendant in the Commonwealth

1006
00:39:24.360 --> 00:39:26.190
in the criminal case,

1007
00:39:26.190 --> 00:39:27.030
to certain records,

1008
00:39:27.030 --> 00:39:29.640
but the records still belonged to the juvenile court

1009
00:39:29.640 --> 00:39:32.970
in order to be returned in some sort of fashion afterwards.

1010
00:39:32.970 --> 00:39:34.950
How does that work in this context

1011
00:39:34.950 --> 00:39:35.940
where it's the media?

1012
00:39:35.940 --> 00:39:36.773
<v ->Well, it doesn't.</v>

1013
00:39:36.773 --> 00:39:39.570
I mean, one of the things that comes up in MC

1014
00:39:39.570 --> 00:39:41.940
and also in various contexts

1015
00:39:41.940 --> 00:39:45.060
is that the whole purpose of allowing these records

1016
00:39:45.060 --> 00:39:48.390
is still meant to be in protection of public disclosure.

1017
00:39:48.390 --> 00:39:51.450
So even when these requests have been granted,

1018
00:39:51.450 --> 00:39:52.287
there's been--

1019
00:39:53.520 --> 00:39:56.610
<v ->I thought she raised that as a possibility,</v>

1020
00:39:56.610 --> 00:39:59.040
that once she reviews it,

1021
00:39:59.040 --> 00:40:03.180
that they're open to some discussion about limitations

1022
00:40:03.180 --> 00:40:06.120
the way Justice Wendlandt just phrased it.

1023
00:40:06.120 --> 00:40:09.752
I thought that's part of their request.

1024
00:40:09.752 --> 00:40:12.600
<v ->Well, it was something that was suggested later,</v>

1025
00:40:12.600 --> 00:40:15.600
but I think even still what they're seeking to use

1026
00:40:15.600 --> 00:40:17.010
would be for public disclosure.

1027
00:40:17.010 --> 00:40:18.420
And so the distinction I'm making

1028
00:40:18.420 --> 00:40:21.990
is simply that when they reached a compromise in MC,

1029
00:40:21.990 --> 00:40:26.250
it was also held that there would still be limitations

1030
00:40:26.250 --> 00:40:27.420
put on how it could be used

1031
00:40:27.420 --> 00:40:30.120
to ensure it did not enter the public forum.

1032
00:40:30.120 --> 00:40:31.380
Whereas here it's being sought

1033
00:40:31.380 --> 00:40:33.210
specifically for public disclosure,

1034
00:40:33.210 --> 00:40:35.730
which is in direct contravention

1035
00:40:35.730 --> 00:40:37.200
of the policy surrounding this,

1036
00:40:37.200 --> 00:40:39.480
which is why the lower court judge

1037
00:40:39.480 --> 00:40:41.637
identified this as being a question for the legislature

1038
00:40:41.637 --> 00:40:42.870
and not for the court,

1039
00:40:42.870 --> 00:40:45.900
because we have law that answers these questions.

1040
00:40:45.900 --> 00:40:47.640
So I think what's challenging

1041
00:40:47.640 --> 00:40:49.080
is it might be one of those questions

1042
00:40:49.080 --> 00:40:51.510
where we want it to say something different,

1043
00:40:51.510 --> 00:40:52.860
but as the law stands right now,

1044
00:40:52.860 --> 00:40:54.120
the privacy interests

1045
00:40:54.120 --> 00:40:56.730
are the most compelling interests in this case.

1046
00:40:56.730 --> 00:40:58.407
<v Gaziano>Thank you, any further questions?</v>

1047
00:40:58.407 --> 00:40:59.280
<v ->No.</v>
<v ->Thank you, counsel.</v>

1048
00:40:59.280 --> 00:41:00.949
<v ->Thank you, Your Honors.</v>

1049
00:41:00.949 --> 00:41:03.699
(pages rustling)

1050
00:41:15.510 --> 00:41:16.350
<v ->May it please the court.</v>

1051
00:41:16.350 --> 00:41:17.790
Good morning, my name's Andrew Hoffman.

1052
00:41:17.790 --> 00:41:20.310
I represent the appellate mother in this case.

1053
00:41:20.310 --> 00:41:23.460
She opposes the petitioner's request

1054
00:41:23.460 --> 00:41:25.560
for access to information

1055
00:41:25.560 --> 00:41:26.610
and asks that this court

1056
00:41:26.610 --> 00:41:27.990
affirm the lower court's decision

1057
00:41:27.990 --> 00:41:30.693
to deny petitioner's motion.

1058
00:41:31.980 --> 00:41:33.900
I'm sensing that you have been waiting

1059
00:41:33.900 --> 00:41:37.500
to ask me what remaining privacy interests the mother has.

1060
00:41:37.500 --> 00:41:38.400
I do wanna address that.

1061
00:41:38.400 --> 00:41:40.830
If I could quickly address a couple of other issues

1062
00:41:40.830 --> 00:41:41.670
that have been raised here,

1063
00:41:41.670 --> 00:41:43.860
because I do think they're extremely important.

1064
00:41:43.860 --> 00:41:47.040
The first is, the last question raised by Justice Wendlandt

1065
00:41:47.040 --> 00:41:49.530
and then touched on by Justice Kafker.

1066
00:41:49.530 --> 00:41:53.790
The petitioner did propose a remedial idea,

1067
00:41:53.790 --> 00:41:55.320
actually had three ideas.

1068
00:41:55.320 --> 00:41:59.010
One was to, one and two were kind of similar,

1069
00:41:59.010 --> 00:42:01.980
which is basically go through and ferret out,

1070
00:42:01.980 --> 00:42:05.400
select out just the information

1071
00:42:05.400 --> 00:42:07.320
pertaining to the judge's reasoning

1072
00:42:07.320 --> 00:42:10.800
and leave out all of the mother's privacy interests.

1073
00:42:10.800 --> 00:42:13.200
The last suggestion was that the parties

1074
00:42:13.200 --> 00:42:15.390
get a copy of the transcript ahead of time

1075
00:42:15.390 --> 00:42:17.220
and get to go through and redact that.

1076
00:42:17.220 --> 00:42:18.600
And my client's position

1077
00:42:18.600 --> 00:42:20.640
is that those would not work here.

1078
00:42:20.640 --> 00:42:23.310
One, it's a major assumption

1079
00:42:23.310 --> 00:42:25.560
for the first two of those proposals

1080
00:42:25.560 --> 00:42:29.340
that this information can be easily segregated,

1081
00:42:29.340 --> 00:42:31.890
that somehow during the court proceeding

1082
00:42:31.890 --> 00:42:33.300
that they touched on

1083
00:42:33.300 --> 00:42:35.400
only mother's privacy interests at one point,

1084
00:42:35.400 --> 00:42:36.810
and then at a separate time,

1085
00:42:36.810 --> 00:42:38.520
only the judge's reasoning

1086
00:42:38.520 --> 00:42:39.990
for making her decision,

1087
00:42:39.990 --> 00:42:42.240
when in reality, as we know how things go in court,

1088
00:42:42.240 --> 00:42:45.810
it's much more likely that those pieces of information,

1089
00:42:45.810 --> 00:42:48.300
those points were most likely jumbled.

1090
00:42:48.300 --> 00:42:51.090
So it's unlikely that those would be easily segregated.

1091
00:42:51.090 --> 00:42:52.340
<v Wendlandt>So mother's position</v>

1092
00:42:52.340 --> 00:42:54.870
is that this has to be disclosed totally

1093
00:42:54.870 --> 00:42:56.190
or not at all?

1094
00:42:56.190 --> 00:42:59.520
<v ->Well, so not necessarily.</v>

1095
00:42:59.520 --> 00:43:02.700
What I was gonna say is, for the third one is,

1096
00:43:02.700 --> 00:43:07.700
in this case, according to care and protection cases,

1097
00:43:08.460 --> 00:43:10.080
which I'm sure this court has seen,

1098
00:43:10.080 --> 00:43:12.840
this is a pretty thin evidentiary record.

1099
00:43:12.840 --> 00:43:14.640
Meaning this motion was filed,

1100
00:43:14.640 --> 00:43:16.950
these proceedings were based on this motion.

1101
00:43:16.950 --> 00:43:18.330
But as this court probably also knows,

1102
00:43:18.330 --> 00:43:19.620
in some of these cases,

1103
00:43:19.620 --> 00:43:21.780
the record can be voluminous.

1104
00:43:21.780 --> 00:43:24.450
And it would warrant an unreasonable burden

1105
00:43:24.450 --> 00:43:26.430
on a parent to have to go through

1106
00:43:26.430 --> 00:43:28.950
potentially thousands of pages of a transcript

1107
00:43:28.950 --> 00:43:31.080
and identify those portions

1108
00:43:31.080 --> 00:43:33.630
which are privacy, interest and objectionable

1109
00:43:33.630 --> 00:43:34.740
versus those which are not.

1110
00:43:34.740 --> 00:43:36.930
That would be a shifting of the burden of proof,

1111
00:43:36.930 --> 00:43:39.510
which is impermissible to the parent to do that.

1112
00:43:39.510 --> 00:43:42.480
<v ->I'm not sure I understand why it would be so difficult.</v>

1113
00:43:42.480 --> 00:43:44.190
Again, I understand also

1114
00:43:44.190 --> 00:43:45.870
that there's some disagreement

1115
00:43:45.870 --> 00:43:48.780
about what has been made public by the mother

1116
00:43:48.780 --> 00:43:50.070
and what hasn't been,

1117
00:43:50.070 --> 00:43:53.340
but why is it not possible

1118
00:43:53.340 --> 00:43:54.970
to go through the transcript

1119
00:43:55.920 --> 00:44:00.570
and identify private material of the mother

1120
00:44:00.570 --> 00:44:02.920
that she hasn't already disclosed

1121
00:44:04.140 --> 00:44:06.030
if she's been on TV,

1122
00:44:06.030 --> 00:44:08.610
or she's been talking about her substance abuse,

1123
00:44:08.610 --> 00:44:10.860
or whatever her problems were before,

1124
00:44:10.860 --> 00:44:12.240
why couldn't you do that?

1125
00:44:12.240 --> 00:44:15.300
<v ->Right, so kind of a two-part answer.</v>

1126
00:44:15.300 --> 00:44:17.100
One, as I said, in this case,

1127
00:44:17.100 --> 00:44:19.800
it may have been possible to do that.

1128
00:44:19.800 --> 00:44:22.230
The test, as we've already discussed this morning--

1129
00:44:22.230 --> 00:44:24.750
<v ->So wouldn't that solve your client's interest in that</v>

1130
00:44:24.750 --> 00:44:26.280
if you just go through the transcript

1131
00:44:26.280 --> 00:44:28.410
and redact out mom's personal information?

1132
00:44:28.410 --> 00:44:29.910
<v ->It could potentially.</v>

1133
00:44:29.910 --> 00:44:32.790
I was thinking about a frankly polite way

1134
00:44:32.790 --> 00:44:34.140
of responding to this question

1135
00:44:34.140 --> 00:44:35.250
I knew that was coming,

1136
00:44:35.250 --> 00:44:36.750
which is, again,

1137
00:44:36.750 --> 00:44:38.220
to the shifting of the burden,

1138
00:44:38.220 --> 00:44:41.730
that the mother shouldn't have to,

1139
00:44:41.730 --> 00:44:42.563
the way I would phrase it,

1140
00:44:42.563 --> 00:44:45.600
shouldn't have to disclose her privacy interests

1141
00:44:45.600 --> 00:44:47.280
to then protect her privacy interests.

1142
00:44:47.280 --> 00:44:48.810
In other words, it's a perversion of logic

1143
00:44:48.810 --> 00:44:50.820
and shifting the burden for her to speak up

1144
00:44:50.820 --> 00:44:52.800
and identify affirmatively

1145
00:44:52.800 --> 00:44:54.060
what her privacy interests are

1146
00:44:54.060 --> 00:44:55.230
when those are the exact interests

1147
00:44:55.230 --> 00:44:56.790
that she is trying to protect.

1148
00:44:56.790 --> 00:44:59.423
<v ->Wouldn't that come out naturally in the hearing though,</v>

1149
00:45:00.424 --> 00:45:01.320
her issues,

1150
00:45:01.320 --> 00:45:04.830
or the things that give rise, her privacy interests,

1151
00:45:04.830 --> 00:45:08.250
would be the natural part of these proceedings, correct?

1152
00:45:08.250 --> 00:45:12.240
<v ->Yes, but then that would be brought out to the parties.</v>

1153
00:45:12.240 --> 00:45:13.770
But we're talking about here a non-party

1154
00:45:13.770 --> 00:45:16.110
who's seeking access to that,

1155
00:45:16.110 --> 00:45:18.540
so that's--

1156
00:45:18.540 --> 00:45:22.680
<v ->But she wasn't even a potential, right?</v>

1157
00:45:22.680 --> 00:45:25.620
The mother wasn't seeking custody, right?

1158
00:45:25.620 --> 00:45:27.810
She wasn't seeking custody.

1159
00:45:27.810 --> 00:45:31.470
Her problems seem to be peripheral

1160
00:45:31.470 --> 00:45:34.920
to the issues that are being dealt with by the judge,

1161
00:45:34.920 --> 00:45:38.370
which is whether to give the child to the father

1162
00:45:38.370 --> 00:45:41.400
or to keep the child with DCF.

1163
00:45:41.400 --> 00:45:44.970
So I mean, I'm not even sure how interested

1164
00:45:44.970 --> 00:45:47.550
they're gonna be in the mother's information

1165
00:45:47.550 --> 00:45:50.647
as long as they can figure out,

1166
00:45:50.647 --> 00:45:52.620
"Why did the child go to the father

1167
00:45:52.620 --> 00:45:54.120
given his criminal record?"

1168
00:45:54.120 --> 00:45:56.310
<v ->Right, I agree with the first part of your statement,</v>

1169
00:45:56.310 --> 00:45:57.180
not the second part.

1170
00:45:57.180 --> 00:46:00.903
<v ->Okay, go ahead.</v>
<v ->So you're correct.</v>

1171
00:46:02.310 --> 00:46:03.390
Earlier in the case, yes,

1172
00:46:03.390 --> 00:46:05.220
they had been seeking reunification to mother,

1173
00:46:05.220 --> 00:46:06.510
that she had been seeking reunification.

1174
00:46:06.510 --> 00:46:07.710
In fact, the child had been returned to her

1175
00:46:07.710 --> 00:46:09.180
and then removed a couple times.

1176
00:46:09.180 --> 00:46:10.740
At that point in process, no,

1177
00:46:10.740 --> 00:46:12.930
they were only looking at the father.

1178
00:46:12.930 --> 00:46:14.760
But what I don't agree to

1179
00:46:14.760 --> 00:46:16.770
is the use of your term peripheral,

1180
00:46:16.770 --> 00:46:20.430
the whole point of 11938 for privacy interest--

1181
00:46:20.430 --> 00:46:21.510
<v ->Fair point.</v>
<v ->Yeah, so--</v>

1182
00:46:21.510 --> 00:46:25.500
<v ->But that's not most likely to be</v>

1183
00:46:25.500 --> 00:46:29.940
what the focus of the press is,

1184
00:46:29.940 --> 00:46:32.880
which is, "Why did it go to the father

1185
00:46:32.880 --> 00:46:35.490
and why did the system allow it to go to the father

1186
00:46:35.490 --> 00:46:36.930
who ends up killing the child?"

1187
00:46:36.930 --> 00:46:38.610
So I just don't see

1188
00:46:38.610 --> 00:46:42.480
why they can't deal with your interest

1189
00:46:42.480 --> 00:46:44.970
the way Justice Wendlandt talked about,

1190
00:46:44.970 --> 00:46:49.970
which is dealing with this once the material is disclosed

1191
00:46:50.130 --> 00:46:51.450
and then working out something

1192
00:46:51.450 --> 00:46:54.150
that protects the mother's interests.

1193
00:46:54.150 --> 00:46:58.770
<v ->Right, and so the response is,</v>

1194
00:46:58.770 --> 00:47:00.390
and this is what the lower court judge

1195
00:47:00.390 --> 00:47:02.670
touched on in her ruling

1196
00:47:02.670 --> 00:47:05.040
is you're probably correct.

1197
00:47:05.040 --> 00:47:07.050
I mean, we don't know exactly what the press

1198
00:47:07.050 --> 00:47:08.940
would do with mother's privacy interests,

1199
00:47:08.940 --> 00:47:10.770
presuming even that that's not really their--

1200
00:47:10.770 --> 00:47:12.003
<v Wendlandt>No, but if it was redacted out,</v>

1201
00:47:12.003 --> 00:47:13.260
they would have no choice

1202
00:47:13.260 --> 00:47:15.120
but to do nothing with it.

1203
00:47:15.120 --> 00:47:15.953
<v ->Yeah.</v>
<v ->So that would be</v>

1204
00:47:15.953 --> 00:47:17.130
fine for your client,

1205
00:47:17.130 --> 00:47:17.963
right?
<v ->They wouldn't have it.</v>

1206
00:47:17.963 --> 00:47:20.973
<v Kafker>Or they'd have to agree to a confidentiality,</v>

1207
00:47:21.960 --> 00:47:23.820
something.
<v ->Might be possible.</v>

1208
00:47:23.820 --> 00:47:25.980
Yeah, but to try and respond to your question,

1209
00:47:25.980 --> 00:47:28.197
we don't know what the press would do with that.

1210
00:47:28.197 --> 00:47:30.540
And that was the judge's exact point in a ruling

1211
00:47:30.540 --> 00:47:33.240
is once it's out, there's no meaningful remedy.

1212
00:47:33.240 --> 00:47:34.380
<v Wendlandt>Well, there's contempt.</v>

1213
00:47:34.380 --> 00:47:35.493
I mean, to me that seemed to--

1214
00:47:35.493 --> 00:47:36.750
<v ->That doesn't...</v>

1215
00:47:36.750 --> 00:47:38.160
I'm sorry, go ahead.

1216
00:47:38.160 --> 00:47:39.810
<v ->Well, it may not satisfy you,</v>

1217
00:47:39.810 --> 00:47:41.550
but it's certainly what the judge can do

1218
00:47:41.550 --> 00:47:43.410
to enforce an order.

1219
00:47:43.410 --> 00:47:45.690
<v ->That is certainly an option available to her.</v>

1220
00:47:45.690 --> 00:47:48.927
It wouldn't satisfy protection of the privacy interest,

1221
00:47:48.927 --> 00:47:50.367
and that was a basis for her decision,

1222
00:47:50.367 --> 00:47:52.950
and that doesn't rise to level of abuse of discretion here.

1223
00:47:52.950 --> 00:47:56.190
<v Gaziano>Would redaction satisfy privacy interests?</v>

1224
00:47:56.190 --> 00:47:58.180
<v ->If it could be accomplished in this case, I--</v>

1225
00:47:58.180 --> 00:48:00.570
<v ->Well, it seems like you're conceding that it could</v>

1226
00:48:00.570 --> 00:48:03.030
because it's just the February, 2019

1227
00:48:03.030 --> 00:48:05.460
hearing.
<v ->I'm conceding it's possible.</v>

1228
00:48:05.460 --> 00:48:07.110
We don't have enough information to know,

1229
00:48:07.110 --> 00:48:08.370
and it was within the judge's discretion to--

1230
00:48:08.370 --> 00:48:10.770
<v ->But shouldn't we remand it to find out,</v>

1231
00:48:10.770 --> 00:48:11.913
as opposed to trying to guess?

1232
00:48:11.913 --> 00:48:14.190
<v ->That would be one option.</v>

1233
00:48:14.190 --> 00:48:15.660
And if I could, I realize I'm over time,

1234
00:48:15.660 --> 00:48:16.950
but quickly, the one other point I wanted,

1235
00:48:16.950 --> 00:48:18.120
because several of you have raised it,

1236
00:48:18.120 --> 00:48:20.760
is the standard.

1237
00:48:20.760 --> 00:48:23.100
A strict reading of MC,

1238
00:48:23.100 --> 00:48:24.990
as was noted by counsel earlier,

1239
00:48:24.990 --> 00:48:28.230
limits the test under 7B

1240
00:48:28.230 --> 00:48:29.758
to just parties in the state.

1241
00:48:29.758 --> 00:48:31.441
<v ->Well, it doesn't--</v>
<v ->Well, it wasn't raised</v>

1242
00:48:31.441 --> 00:48:32.520
(laughing) in MC.
<v ->Yeah, it was--</v>

1243
00:48:32.520 --> 00:48:34.105
<v Gaziano>That wasn't an issue in MC.</v>

1244
00:48:34.105 --> 00:48:34.938
<v ->No, I understand--</v>
<v ->Right, the question</v>

1245
00:48:34.938 --> 00:48:37.590
for this case is do we apply that same standard

1246
00:48:37.590 --> 00:48:39.330
for a non-party?

1247
00:48:39.330 --> 00:48:40.710
<v ->Right, so what I was going say is this.</v>

1248
00:48:40.710 --> 00:48:44.250
I think a strict reading would say 7B doesn't apply,

1249
00:48:44.250 --> 00:48:47.430
and you're just left with Standing Order 2-09.

1250
00:48:47.430 --> 00:48:49.140
<v ->What would be your alternative test</v>

1251
00:48:49.140 --> 00:48:52.530
to the one articulated in MC?

1252
00:48:52.530 --> 00:48:54.270
<v ->What I was going to say is this,</v>

1253
00:48:54.270 --> 00:48:55.920
I think it's eminently reasonable

1254
00:48:55.920 --> 00:48:58.500
to have a balancing analysis like 7B,

1255
00:48:58.500 --> 00:49:03.500
and if this court wants to add on to MC1 and 2 to say,

1256
00:49:03.907 --> 00:49:06.750
"We wanna clarify that this balancing analysis

1257
00:49:06.750 --> 00:49:08.040
does apply to non-parties,"

1258
00:49:08.040 --> 00:49:09.180
I think that's eminently reasonable,

1259
00:49:09.180 --> 00:49:10.260
and that's what I would propose.

1260
00:49:10.260 --> 00:49:12.990
It does seem like there should be some balancing analysis

1261
00:49:12.990 --> 00:49:16.323
rather than just strict no access under 2-09.