The Berkshire Eagle is asking a justice of the Massachusetts Appeals Court to unseal documents related to the Berkshire Museum art sale, including the museum's contract with Sotheby's.
In a motion filed Monday with the Boston court, New England Newspapers Inc., publisher of The Eagle, argues that release of the documents is in the public interest and that the material was improperly impounded.
"The public has a longstanding common law and First Amendment right of access to judicial documents filed in civil cases," attorney Jeffrey J. Pyle of the Boston firm Prince Lobel Tye LLP writes in a motion on the newspaper's behalf.
Unsealing the documents in question, Pyle writes, will allow museum "stakeholders" to better understand the decision trustees took when they announced July 12 they would sell 40 works of art, including two paintings by Norman Rockwell, to stabilize their finances and help fund a renovation project. The sales were expected to raise as much as $60 million.
"It will, in short, help the public determine for itself whether or not the Board of Trustees made 'thoughtful decisions to steer its charity through troubled times,' as the Superior Court opined," Pyle writes, "or instead made a grave and costly mistake."
Fredric Rutberg, president of New England Newspapers Inc., said The Eagle and its readers hold an "intense interest" in the museum's decision to sell what he termed the most famous and valuable elements of its collection.
"The Eagle believes that the impounded material contains information that could shed light on the propriety of the Trustees' actions and decisions," Rutberg said in an affidavit filed with the motion. "As such, this is information in which our readership and the entire Berkshire community has a profound interest."
"We don't even know what they're trying to keep from the public," he said in an interview.
The newspaper's motion is expected to be reviewed by the single justice involved with the case at the Appeals Court. Pyle notified the museum's legal team Monday of his filing and said he expects other parties will weigh in before his motion is allowed or denied.
William F. Lee, the Boston attorney representing the museum, declined to comment on the legal action taken by the newspaper.
"Given that The Eagle has now appeared, has taken a position adverse to the Museum and is represented by counsel, I think we need to communicate through your lawyers," he said in an email in response to a request for comment. "I believe those are the ethical rules governing us."
Presumed to be open
Case law, Pyle argues in his memorandum of law, also filed Monday, holds that court files are subject to a presumption of openness. He says courts have upheld the principle that public review of judicial actions, as a 1988 case established, "fosters the important values of quality, honesty and respect for our legal system."
Pyle also argues there is a First Amendment right of access to the documents.
The papers in question were impounded Nov. 1 by Judge John A. Agostini, with the agreement of all parties to the litigation, during proceedings in Berkshire Superior Court.
On the day he sealed the materials, Agostini heard from two groups of plaintiffs seeking a preliminary injunction to stop the sale of museum artworks in auctions set to begin Nov. 13.
While Agostini denied their request in a Nov. 7 ruling, the sales were halted Nov. 10 after an Appeals Court justice stayed Agostini's ruling and they remain on hold pending further legal review.
At the Nov. 1 hearing in Pittsfield, Agostini agreed to requests to impound an unredacted version of the attorney general's response to the plaintiffs' motion for a temporary restraining order.
He also sealed four exhibits attached to an affidavit filed by Emily Gabrault, an assistant attorney general.
Pyle notes in his memorandum of law that the newspaper is unable to determine why trustees of the Berkshire Museum want the materials kept out of public view, or whether they complied with court rules that require the filing of an affidavit to support an impoundment.
"The motion to impound is itself impounded at the Superior Court," Pyle writes.
Pyle notes that Agostini allowed the motion to impound without having written findings of "good cause" to take that step, as required under the Uniform Rules of Impoundment Procedure.
Rutberg said the public has a bona fide interest in understanding how decisions are reached through civil litigation.
"We can't tell how important these documents are because we don't even know how they're characterized," he said. "We find ourselves in a conundrum. We don't know the basis on which the request for impoundment is made."
Copies of the sealed documents were listed on the Appeals Court docket Nov. 10, the day the Attorney General's Office sought and secured a preliminary injunction halting the art sales as well as a stay of proceedings at the Superior Court.
Pyle argues that the newspaper needs access to the sealed documents "to advance its coverage of this important case."
"Among other things, the impounded materials may shed light on the extent of the financial difficulties facing the Museum, the sole stated reason for selling the artwork at issue," Pyle writes.
Further, he says the documents may help the public understand steps that trustees took, or did not take, to seek fundraising alternatives to selling art.
The Sotheby's consignment contract, reached between the museum and the auction house in June, could reveal whether the terms of the sale "sufficiently protected the Museum's assets," Pyle writes.
In his memo, he writes that courts in Massachusetts set a presumption that all documents used by a court in making a determination are public. Pyle says courts have used a "demanding standard" as to what constitutes good cause to seal documents. As an 1884 case decided the issue, that standard ensures that "every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed."
Pyle argues that the burden falls on those who want to keep documents sealed to demonstrate the "good cause" for that.
The extent of community interest in impounded documents is a factor in deciding such matters, according to the Uniform Rules of Impoundment Procedure, he writes.
Pyle notes in his memo that museum trustees view the impounded material as "confidential." But that claim is not enough, Pyle writes, for documents to be kept out of public view.
"In the end, whatever justification the Museum puts forth for continued impoundment is unlikely to overcome the profound public interest in these records," Pyle writes. "This case is part of a national controversy over the circumstances under which museums should be able to deprive the public of access to works of art by selling them at auction to the highest bidder."
Larry Parnass can be reached at email@example.com, at @larryparnass on Twitter and 413-496-6214.