Town loses another open government case

Attorney General rules Charlestown cannot “shield” records from disclosure by hiding them with the Town Solicitor

By Will Collette

A little of Charlestown's Information Stone Wall comes down

On September 5, the RI Attorney General’s office issued decision #PR 13-20 ruling that the Town of Charlestown violated the state open records law (Access to Public Records Act or APRA). 

The decision was based on a complaint I filed on July 21 after the Town refused to release public court records from the Whalerock wind turbine case to me.

The Town claimed it did not possess or maintain those records, even though the Town had provided me with dozens of similar court records over the past two years. 

When I appealed the initial refusal to Town Administrator Mark Stankiewicz, he simply denied the Town had the records, even though the records were in the possession of Town Solicitor Peter Ruggiero.

After I filed my initial complaint, I received another, far more expansive denial of court records from Town Clerk Amy Rose Weinreich, also on the claim that the Town did not possess them. I amended my complaint to include those denials as well.

In my complaint to the Attorney General, I stated that the records existed and that Town was obligated to disclose these records even if they are not held in Town Hall because the Town Solicitor cannot be used as a gimmick for the Town to evade disclosure.

Town Solicitor Peter Ruggiero - admitted he had the records. Claims
he is outside the law. Says he doesn't even have to give the records
to the Town. The Attorney General says he's wrong.

Town Solicitor Ruggiero answered my complaint by admitting the records I requested did exist, that they were public records and that he had them in his possession. 

However, Ruggiero argued, because he is not a Town “employee,” he was outside the reach of the open records act. Further, he made the alarming claim that he had the right to decide which court records he would give to the Town and which he would withhold. 

He also suggested that if I want court records, I should go to the court and get them.

In my rebuttal, I noted that the APRA makes no reference to “employees” and draws no distinction among various types of Town officials. Staff, volunteers, elected officials, contractors, part-timers, consultants, etc. are all subject to the requirements of the law.

I argued that if Ruggiero’s position was allowed to stand, it would allow government bodies to hide any records they didn't want to disclose simply by giving them to their lawyer or even a private contractor.

If I had lost this case, I was going to start a new business

I made a private note to myself that if I lost this case and the Attorney General allowed government bodies to hide their records with private contractors, I would start up a new business called “Recordz-Be-Gone©.” Lots of money to be made helping government officials make embarrassing documents disappear. I figured I could start with Charlestown.

I noted that state law and the Charlestown Town Ordinances make Town Clerk Amy Rose Weinreich the official custodian of the Town’s records and the person responsible to answer open records requests. I noted that the Town Charter clearly makes the Town Solicitor an integral part of Town government.

Finally, I noted that the state open records law does not allow one body of government to refuse an information request simply because a record may also be held by another government body. Most public records exist in more than one place and it's the stated purpose of the law to make it easier for the public to get access to records, not to make it easier for government officials to give people the run around.

The Attorney General’s decision upheld all my arguments and rejected all of Ruggiero’s.

The Attorney General dismissed Ruggiero’s argument that because he is not an “employee,” he is not subject to the APRA by pointing out that  the law covers “any other public or private agency, person, partnership, corporation, or business entity acting on behalf of and/or in place of any public agency.”

This is a slide from the Attorney General's annual conference on Open
Government (August 2, 2013). It contains the actual language of the law,
not the imaginary language Ruggiero used in his defense brief

Stating first that “[r]espectfully, the Town’s response does not address this precise issue,” the Attorney General ruled that after examining the law, the traditional role of lawyers and Ruggiero’s own words to determine if he is a “person acting on behalf of the Town”, “We conclude that he is.”

The ruling does not address the ethical problems behind Ruggiero’s claim that he can withhold court records from the Town, noting that their sole focus is to address the issues related to the open records act. 

An ethics charge against Ruggiero would have to take a different path. My preliminary research indicates that a lawyer may not withhold documents "obtained by or prepared by the attorney for the client as the object of the representation." As a general rule, a client's file is the property of the client, not the lawyer. But, this issue is outside the scope of the APRA and the Attorney General's ruling.

However, the ruling emphatically states:

“Mr. Ruggiero, as attorney and agent for the Town, cannot shield documents responsive to an APRA request that has been directed to the Town even if the Town itself (as opposed to its agent) does not physically maintain the requested records. Even if Mr. Ruggiero deems it unnecessary to provide the Town with copies of documents involved in the prosecuting or defending of the Town’s litigation matters, as its agent, Mr. Ruggiero and/or the Town must respond to the APRA request and the Town must provide public records maintained by its agent….Accordingly, the Town’s response was a violation of the APRA.” [Emphasis added]

The ruling also brushes aside the Town’s argument that upholding my complaint would require Charlestown to create a dual record-keeping system. The law requires that public records requests be fulfilled, not how records have to be filed. 

One little-known aspect of the public records law is that you have the right to inspect records. You have the right to go into Town Hall and assert the right to see any public record you wish to see and the town must make a reasonable attempt to accommodate you. That makes it all the more important that Town Clerk Weinreich actually fulfills the role specified for her under Town law, which is to be the actual custodian of all town records. Besides, the Town has always had a dual filing system for litigation records. At least until July.

Before she retired, Jodi LaCroix (left) taught new Town Clerk Amy Rose
Weinreich how to maintain the file system and how to promptly reply to
requests for public records

Former Town Clerk Jodi LaCroix told me she maintained files on Town litigation as a routine part of her duties and taught Amy Weinreich that system before she retired. 

She would send copies of litigation documents to the council in her Friday packets.  She kept copies of those packets filed by the week at the town hall. Under this system, litigation documents were in a litigation file and the Council members’ weekly packet. 

Until July, the Town routinely provided these records to people filing APRA requests until some decision was made in July to build a stone wall around those records.

NOTE: I formally requested the Town to provide me with any record showing such a change in policy. Since I made the request under the state open records law and the Town did not supply any such written policy changes, I guess they don’t exist. Unless of course, the new policies and procedures are hidden in Peter Ruggiero’s desk.

The Attorney General’s office also brushed aside the Town’s suggestion that I should go get court records from the court and that my action to do just that – to go to Superior Court for copies of the denied Whalerock records – rendered my complaint “moot.”

They ruled “Although you obtained the requested documents we do not believe such action moots this case, but instead, affects the remedy.” So instead of initiating a lawsuit to compel the Town to release the documents, the Attorney General simply put Charlestown on warning that it violated the APRA.

The decision notes that I presented “no evidence of a willful and knowing, or reckless violation,” which of course is true. Such evidence is hard to come by…unless some town whistleblower wants to step forward. 

However, “[n]otwithstanding the above, this finding serves as notice to the Town that its actions violated the APRA and may serve as evidence of a willful and knowing or reckless violation in any future similar case.”

So many creative ways to build an information stone wall

One of the fascinating things about the way the CCA Party officials who control the Town government manage information is that they seem to find new and interesting ways to violate the law. They only occasionally repeat the same violation. That’s one way to avoid “willful and knowing” penalties.

Add this newest violation to such past hits as the secret Y-Gate meetings, Deputy Dan Slattery’s secret investigations, non-existent records, and most recently, his illegal “Australian Ballot.” 

Don’t forget the failure of CCA-controlled commissions to produce meeting minutes, Town Council actions on financial items without advertising them on the agenda and their goofy attempt to hide what attorney Joe Larisa is doing for all the money the Town is paying him to fight the Narragansett Indian Tribe. 

Withholding important Whalerock documents until AFTER the Council vote

And let’s never forget how Town Council Boss Tom Gentz, backed up by Planning Commissar Ruth Platner, ramrodded the decision to push through the $2.1 million purchase of the site of the proposed Whalerock wind farm by HIDING more than 300 pages of important records.

Those records only became available to the public the day after the Council made its decision.

These records undercut Gentz’s claim that the matter was of such urgency that the Council had to vote without delay to meet the developer’s deadline of closing on the deal on August 27. Gentz also withheld information about how the Town had actually won a key legal victory earlier that same day that significantly strengthened the Town’s hand.

But in Charlestown, where the CCA Party's faithful base is unfettered by “truthiness” and believes whatever Platner, Gentz or the other CCA leaders tell them, information is the enemy and truth is toxic.