Judge denies Eagle request to release documents in Berkshire Museum case

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PITTSFIELD — An effort by The Berkshire Eagle to gain access to documents related to the Berkshire Museum's art sale has moved to a new court.

A justice of the Massachusetts Appeals Court on Tuesday denied a motion by New England Newspapers Inc., The Eagle's parent company, to terminate the impoundment of several documents.

One is the museum's contract with Sotheby's to auction 40 artworks. Other documents relate to retreats convened by members of the museum's board in 2016 and to a consultant's report on museum's finances.

The documents were impounded Nov. 1 by Judge John A. Agostini in Pittsfield on the same day he heard arguments in Berkshire Superior Court for and against a bid to stop the controversial art sale.

Though he did not grant the newspaper access, Justice Joseph A. Trainor of the Appeals Court gave the Superior Court permission to consider the request, freeing it up from his own order to refrain from proceedings on the case.

"Denial without prejudice to renewal in the trial court," Trainor's order reads. "The trial court is granted leave from the stay to consider the motion."

The denial came within a day of the newspaper's filing — and before other parties to the litigation filed responses.

New filings

The newspaper filed two motions Wednesday with the Pittsfield court. One seeks to end the impoundment. Another asks that Agostini retain jurisdiction over the matter and that the question be taken up quickly.

"We think this is a story of great public interest," said Fredric Rutberg, president of New England Newspapers Inc.

He said The Eagle seeks to provide information to readers who hold an "intense interest" in the museum's decision.

"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 Wednesday. Rutberg is a retired District Court judge.

A motion prepared by attorney Jeffrey J. Pyle of the Boston firm Prince Lobel Tye LLP asks the Superior Court to hold a hearing on ending the impoundment as soon as possible.

It was the museum's legal team that moved to keep the documents out of public view. The motion seeking that was itself impounded.

The newspaper's motion identifies five documents that remain out of public view.

One is the attorney general's unredacted response to the plaintiffs' motion for a preliminary injunction. The Attorney General's Office was named as a party of interest in a lawsuit filed Oct. 20 by a group of plaintiffs, including three sons of the artist Norman Rockwell.

Four other impounded documents were filed with the court as exhibits attached to an affidavit of Emily Gabrault, an assistant attorney general.

They are:

• Exhibit E — an April 13, 2016, memo prepared by TDC, the consultants hired by the museum to advise it on its New Vision project. The document is titled "Core Capital Needs."

• Exhibit F — described in Gabrault's affidavit as "materials" from the museum's May 5-6, 2016, board retreat.

• Exhibit H — the museum's consignment agreement with Sotheby's, reached in June.

• Exhibit T — described in Gabrault's affidavit as "materials" from an Oct. 24, 2016, board retreat.

Motion's argument

Pyle argues on the newspaper's behalf that unsealing the documents would enable people who care about the museum's well-being to better understand the circumstances of the controversial art deaccession.

"It will, in short, help the public determine for itself whether of 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."

Pyle argues that the materials were improperly impounded. He maintains that both common law and the First Amendment support public access to court documents in civil cases.

Agostini impounded the documents on the day he heard arguments from two groups of plaintiffs seeking a preliminary injunction to stop pending auctions. Though Agostini denied their request Nov. 7, the Attorney General's Office secured an injunction from Trainor that stopped auctions set to begin Nov. 13.

The art sales remain on hold. The case is heading to a three-judge panel of the Appeals Court.

Pyle argues that the newspaper needs access to the documents to advance its coverage of an 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.

The Sotheby's contract could reveal whether the terms of the sale "sufficiently protected the Museum's assets," Pyle writes.

In one motion filed Wednesday, the newspaper asks that the issue be heard by Agostini, even though a new judge is scheduled to be rotated in to Berkshire Superior Court in December.

"Judge Agostini is highly familiar with the issues in the case and the proceedings thus far, and is therefore in the best position to assess the competing interests at stake on the impoundment question," Pyle's motion reads.

Larry Parnass can be reached at lparnass@berkshireeagle.com, at @larryparnass on Twitter and 413-496-6214.


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