(concurring in part and dissenting in part). I concur with the court’s decision in all respects except its application of the fair report privilege to the August 3,2005, article that provided details of the August 2 executive session of the sewer commission. I would not apply the privilege to that article.
In its analysis the court relies on the Restatement (Second) of Torts § 611 (1977). Ante at 652. Comment a to § 611 states, “It is not clear whether the privilege extends to a report of an official proceeding that is not public or available to the public under the law.”
The court also cites two policies underlying the fair report privilege as applicable to this case. The first, known as “the agency rationale, protects the press when it reports on official actions and statements that members of the public could have witnessed for themselves” (emphasis added). Ante at 652-653. Writing for this court, lustice Holmes said the “[fair report] privilege and the access of the public to the courts stand in reason upon common ground.” Cowley v. Pulsifer, 137 Mass. 392, 394 (1884). This policy is not limited to courts but extends generally to all public bodies. See Barrows v. Bell, 7 Gray 301, 313 (1856). *674The significance of this policy is that if the public could not attend the meeting of the sewer commission concerning Howell, then The Enterprise Publishing Company, LLC, and its reporters (collectively, the Enterprise) could not rely on the fair report privilege to report the conduct of the meeting to the public. Here, because the hearing was held in executive session, the public could not have witnessed the proceeding, and the first policy could not support application of the privilege to the August 3 article.
The second policy on which the court relies is the role of “public supervision” attributed to the news media. That is, the privilege “is generally seen as allowing the news media to serve as a check on the power of government by giving the public the opportunity to be informed citizens and voters.” Ante at 653. Significantly, the Enterprise points to nothing improper in the conduct of the executive session conducted by the sewer commission, especially the vote to enter executive session or the maintenance of the records of the executive session in secret. See G. L. c. 39, § 23B, fourth par. (executive session may be convened to consider discipline of public employee). It may be presumed that, had the Enterprise thought that the proceeding was conducted improperly, it would have filed a civil action under G. L. c. 39, § 23B, seventh, eleventh, and thirteenth pars., challenging the vote to enter executive session and the secret maintenance of the records of that session. That would have been the legislatively established method for the Enterprise to fulfil its public supervision role. The Enterprise did not pursue this course.
The policy behind permitting a governmental body to consider the discipline of a public employee in executive session and to extend the secrecy of those proceedings until the process is concluded, or for other valid reasons, is good government. G. L. c. 39, § 23B, fourth and seventh pars. That is not questioned. Disclosure of the details of those proceedings by an official sworn to uphold that policy violates that policy and is not consonant with good government. A newspaper that publishes such detail before the governmental body releases its records to the public cannot be said to be acting in its public supervision role.
The court places great importance on the fact that what oc*675curred in the August 2, 2005, executive session was an “official action.” Ante at 654-660. This ignores the fact that under G. L. c. 39, §§ 23A-23C, the so-called open meeting law, the Legislature has authorized municipal agencies to conduct certain business in executive session. The court says, “The privilege to report official actions would mean very little, however, if to qualify for its protection, the media were limited to reporting such actions solely on the basis of on-the-record statements by high-ranking (authorized to speak) officials or published official documents.” Ante at 658. Generally, I agree, but the cases on which the court relies do not involve executive session. Today’s decision renders the legislative enactment as to executive session meaningless, because the policy behind G. L. c. 39, § 23B, fourth and seventh pars., can be eviscerated by the news media acting with anyone who was present at an executive session, including an accuser, someone bearing a grudge against the employee, or a member of the governmental body in question (even one who voted to go into executive session), to publish material that the Legislature determined should be kept temporarily secret. See Conner v. Standard Publ. Co., 183 Mass. 474, 479 (1903); Bufalino v. Associated Press, 692 F.2d 266, 270-272 (2d Cir. 1982), cert. denied, 462 U.S. 1111 (1983) (“Only reports of official statements or records made or released by a public agency are protected by the § 611 privilege” [emphasis in original]). This conflict between the common-law fair report privilege and the open meeting law must be resolved in favor of the statute. See Taygeta Corp. v. Varian Assocs., Inc., 436 Mass. 217, 226 (2002); Southworth v. Edmonds, 152 Mass. 203, 211 (1890) (Knowlton, J., dissenting).
None of the policies behind the fair report privilege supports its application to the August 3, 2005, article. I respectfully dissent from that aspect of the court’s decision.