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NORMAN BARNES No. SJ-2011-0265 SUPPLEMENTAL AFFIDAVIT OF JOHN DAVIDOW JOHN DAVIDOW, being duly sworn, deposes and states:
I am the Executive Editor of WBUR, a public radio station located at 90.9 FM. The FCC has issued the license to operate WBUR to Boston University. I am responsible for the station’s wbur.org website, and am the Executive Producer of WBUR’s “OpenCourt” project.
I have read the Commonwealth’s “Emergency Petition under G.L. c. 211, § 3” to this Court, challenging an Order of the Quincy District Court that authorizes OpenCourt to allow public access to a video recording of the May 27, 2011, hearing in this case. The Commonwealth’s Emergency Petition is factually inaccurate in many respects, and makes assertions that are inconsistent with the history of the OpenCourt project. Because I was, in a sense, “present at the creation” of the project, and have participated in literally dozens of meetings and virtually every meaningful decision that led to the placement of the OpenCourt video cameras in the Quincy District Court, I am qualified to provide this Court with the factual background on which to base its decision.
The Commonwealth seems to suggest that the OpenCourt project landed in the Quincy District Court without a complete, public discussion of the issues. That is simply incorrect. The history of this project shows that the public—including representatives of the judiciary and of the District Attorney—were fully engaged from the beginning, and have been kept apprised of all developments.
In 2003, when I joined WBUR as News Director/Managing Editor, I began to represent WBUR as a member of the Massachusetts Supreme Judicial Court Judiciary-Media Committee. The Committee was established in 1995 “to help foster good working relationships and to improve better understanding between the judicial branch and the media, both print and electronic. The Committee helps to address and resolve problems, if possible, incurred by the media in gaining access to court proceedings and documents. . . . The Committee sponsors judiciary-media programs and conferences throughout the state in an effort to improve understanding and appreciation of the roles and functions of the judiciary and the media.” http://www.mass.gov/courts/sjc/media/judiciarymedia.html
The current membership of the Committee includes the Honorable Robert J. Cordy, Associate Justice of this Court (Co-Chair of the Committee), several sitting and retired state court judges, including representatives of the Probate and Family Court, the Appeals Court, the District Court, the Juvenile Court, the Land Court, Boston Municipal Court and the Superior Court; Judge Nancy Gertner of the United States District Court; Clerks and administrative officers of the various courts; and prominent attorneys in Boston who have worked on issues relating to public access to the courtroom.
In 2009, WBUR applied for a grant from the Knight Foundation that was designed to “help speed media innovation by field-testing the most promising news technologies and techniques in specific geographic communities.” The Knight Foundation expressed interest in our proposal, but that interest was based on the commitment the proposed project had already received from the members of the Supreme Judicial Court’s Judiciary Media Committee, Harvard University’s Citizen Media Law Project, and WBUR. The strength of this commitment is what elevated our proposal above more than 3000 other competing projects. In November, 2009, as the Knight Foundation’s interest became more serious, I brought the idea to the Judiciary Media Committee for a formal vote endorsing the project. I did this for a number of reasons. I valued the opinions of the
various constituencies represented on the Committee. I also wanted to make the media aware of WBUR’s proposal, and to secure both their support and their voluntary participation in the project. At no point was this proposal unilaterally negotiated with the judiciary. (Ironically, the Commonwealth’s brief contains that insinuation.)
After much discussion, our proposal to the Knight Foundation received unanimous support from the Judiciary Media Committee.
The Committee also recommended that I speak with Judge Mark Coven, Chief Judge of the Quincy District Court, about using his courtroom as a venue for recording the proceedings. Judge Coven embraced the idea, and agreed to allow the project to begin in his courtroom.
The Knight Foundation awarded funding to WBUR in June 2010. The grant, as I noted in my earlier affidavit, sought “[t]o establish best practices for digital reporting from courtrooms” and to “create a model for greater citizen access and understanding of the judicial process through the integration of digital technology into courts.” The National Center for State Courts also endorsed this project.
WBUR was mindful of the many constituencies that would be affected by the project. We began working with the staff of the Quincy District Court to determine the best way to make people who might be affected by judicial proceedings aware of the project. During the summer of 2010, I worked with Judge Coven, the Quincy District Court Clerk’s office, Ellen Shapiro, the Chief Counsel to the Massachusetts District Court, and Craig Burlingame, the court’s Chief Technology Officer to identify potential issues. We held four meetings at the Quincy District Court, in which representatives of the Public Defenders’ office, victims’ advocates’ groups, court clerks, and the District Attorney’s office participated. A representative from the D.A.’s office attended all of these meetings. In fact, District Attorney Michael W. Morrissey attended the December 15, 2010 meeting, which was covered by the Quincy Patriot Ledger in a story that included a photograph of Justice Cordy, Mr. Morrissey, and me.
11. On a parallel track, we organized an Advisory Board to guide OpenCourt in sorting through the various
concerns raised by different interested citizens and groups, and also to help us deal with some of the technical issues. The members of the Advisory Board are: Justice Cordy; United States District Judge Nancy Gertner; David Ardia, Director of the Citizen Media Law Project at Harvard University’s Berkman Center for Internet & Society; Tracey Maclin, a professor of law at Boston University School of Law with expertise in First Amendment issues; Jeanmarie Carroll, First Assistant District Attorney of the Norfolk County D.A.’s office; Joan Kenney, Chief Public Information Officer of the SJC; Liam Lowney, Chief of Victim Witness Services in the Office of the Attorney General; Ellen Shapiro, Director of Court Operations and General Counsel of the Massachusetts Trial Court; Denise Squillante, President of the Massachusetts Bar Association; and Lisa Williams, founder and CEO of Placeblogger.com. Jeanmarie Carroll, representing the District Attorney’s office, joined OpenCourt’s Advisory Board after its first meeting.
12. The Advisory Board constitutes an extraordinarily diverse group of very smart and talented people who
care deeply about all of the issues involved in this case. Together, we worked long and hard to address some of the concerns that are now before this Court.
13. On April 29, 2011, after months of discussion, I received a letter from Norfolk County District Attorney
Morrissey, expressing his concern about the live video/audio feed that was scheduled to begin on May 2 in Judge Coven’s courtroom. It is attached to this affidavit as Exhibit A. On May 2, the District Attorney’s office filed its first motion to restrict OpenCourt’s reporting and indicated that it would be filing similar motions on future cases. Judge Coven denied the motion. But that afternoon, I asked for an emergency meeting of the Advisory Board, and, following our meeting, I informed the Board that OpenCourt would “voluntarily suspend further posting of the archives” in order to continue work on resolving the balancing of the need for openness with the need to protect the rights of victims and witnesses. Exhibit B.
14. On May 3, Judge Coven told me that we needed to resolve the issues raised by the District Attorney’s
motions. Since that time, neither I nor, to my knowledge, any employee of WBUR or the OpenCourt project has discussed the legal issues pertaining to the archive with Judge Coven since the District Attorney
filed his first motion to restrain OpenCourt’s distribution of information from the courtroom. Nor have we discussed any issues pertaining to the Barnes case with Judge Coven.
15. On May 4, I responded to District Attorney Morrissey’s April 29 letter and advised him that, although
OpenCourt disagreed with the claims and arguments in that letter, we had agreed to “voluntarily and temporarily cease offering a publicly-accessible archive of audio and video recordings . . .”, and that we would continue to put that aspect of the project on hold for two weeks. Exhibit C. In response, District Attorney Morrissey wrote back to me on May 5, and indicated his hope that the gap between his office and OpenCourt could be bridged. Exhibit D. However, he also indicated his belief that, ultimately, the matter would require resolution by the courts.
16. Another meeting took place on May 9. At that meeting, both Justice Cordy and the Honorable Lynda
Connolly, Chief Justice of the District Court, acknowledged the importance of this project. Justice Cordy noted that the SJC was supportive of the project. Various possible solutions were discussed, including delayed access (posting archives several days after live court hearings, to allow the resolution of any objections that any interested parties might assert), registration, etc. This meeting and a follow up meeting on May 13 is referred to as the OpenCourt subcommittee on Access to Archives on the OpenCourt.us website: http://opencourt.us/2001/06/archiving-resolved/ 17. On behalf of the District Attorney, Jeanmarie Carroll and Varsha Kukafka (counsel in this matter and the Chief of the Appellate Section of the Norfolk District Attorney’s office) articulated the District Attorney’s concerns relating to privacy and safety of participants in judicial proceedings.
18. OpenCourt’s full Advisory Board met again on May 23, and began to create a framework to resolve the
issue. We tried to develop consensus around making each day’s archive recording publicly available several days after it had been created to allow us to voluntarily redact certain information (e.g., “blurts,” or inadvertent disclosures of minors’ names, confidential information, etc.). We also wanted to make sure the archive was posted in a manner that would make it difficult for someone to save it on his or her own computer. We discussed registration and terms of service. We also agreed that interested parties could continue to request redaction of certain information even after a recording had been made public.
19. The Advisory Board met again on June 2 and reached consensus. It should be noted that Jeanmarie Carroll
did not participate in this meeting, but sent a message prior to the meeting stating “The position of my office has been made clear by the DA.” Exhibit E.
20. OpenCourt advised the Advisory Board that it would adopt the following policies:
1) Each day’s archived recording would be made publicly available two business days after it was created. Within that period, interested parties can request that specific items (e.g., blurts) be redacted.
2) The archive will be posted in a manner to make it difficult for someone to save
the video stream. 3) Access to the archive will require registration with the website and acceptance of terms of service. 4) The registration process will require a response to an e-mail verification. 5) The archive will remain available at no charge to the public. 6) Interested parties will be able to continue to request redaction even after a day’s recording had been made public.
21. I should also mention that, consistent with WBUR policy, OpenCourt will not publish the name of the
minor victim in this or any other case. In addition to not naming the victim, OpenCourt will redact any information it deems necessary to protect the identity of the minor in this case or in any cases that OpenCourt records.
22. OpenCourt also set about to improve signs in and around the courtroom informing the public that the
proceedings were being video-streamed on the internet.
23. Finally, we continued to voluntarily suspend posting of the archives until we worked out the technical
requirements of implementing the registration process.
24. On June 16, OpenCourt launched the public access portion of its project, making video archives available
to viewers. The attached posting on our blog describes the process (and is consistent with what I described in the preceding paragraphs). Exhibit F. 25. On June 16, and again on June 20, Judge Coven issued the Orders that are the subject of the dispute in this case.
26. WBUR, and OpenCourt, have attempted to find the proper balance between providing information to the
public about important public issues and protecting the privacy of individuals. Signed under the pains and penalties of perjury this 8th day of July, 2011.
_____________________________ John Davidow
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