New Open Records Law
Needs Enforcement
By Steven Brown in RIFuture.org
Between 1999 and June 2012, the Attorney General’s office filed
lawsuits against public bodies for violating the state’s Access to Public
Records Act (APRA) on only six occasions, less than 4% of the time after
finding that violations of the law had been committed. That is one of the
findings of a report issued today by the ACLU of Rhode
Island, which examines past
enforcement of the open records law by the AG’s office and urges stronger
enforcement in the future.
In June 2012, the General Assembly enacted comprehensive
amendments to APRA, and expanded the circumstances for imposing penalties
against public bodies that violate the Act. This prompted the ACLU to examine
how APRA had been enforced by the Attorney General’s office, the state agency
explicitly given enforcement powers under APRA, prior to those amendments.
Violations of uncomplicated aspects of the law — such as
responding to an open records request within the required time period,
notifying requesters of their appeal rights, and not charging unreasonable fees
for the inspection and copying of records — occurred repeatedly.
Even the most blatant violations of the statute rarely led to
legal action by the Attorney General. In one recent instance, the same public
body – the Town of North Providence – was found to have violated APRA six
separate times within a two-year period, yet even after the sixth violation,
the Attorney General refused to find that the Town had engaged in a “knowing
and willful” violation that warranted seeking penalties under the law.
It should be noted that the AG’s failure to pursue vigorous APRA
enforcement occurred regardless of who had been in office during the time
period studied. And it must be acknowledged that until the 2012 amendments were
adopted, the Attorney General faced a high standard – a finding of a “knowing
and willful” violation of the law – in order to obtain financial penalties
against a public body.
But since so many of the violations have been so clear,
even this standard should have led to a much stronger track record in pursuing
legal action and thereby helping to deter future violations by public bodies.
Under last year’s amendments to the law, a public body can now
be subject to financial penalties for “reckless” violations of the law as well
as “knowing and willful” ones, which means the complainant need no longer prove
that the violation was done with deliberate knowledge of its illegality.
In
order to promote respect for, and compliance with, the law, it is essential
that the AG make use of the statute’s strengthened penalty provisions to seek
fines against public bodies that engage in clear violations of APRA’s
requirements.
It is insufficient to issue findings of APRA violations with no
further repercussions when the violations should never have occurred in the
first place. A more vigorous response is necessary in order to help reverse a
culture of secrecy that seems to pervade too many government agencies.
If little changes, however, the General Assembly should further
strengthen the penalty sections of the law by significantly increasing the
fines that can be imposed to encourage enforcement by private parties.
The
General Assembly should also consider whether another state agency should be
tasked with the responsibility of enforcing the statute if the AG’s office does
not increase its pursuit of violations against recalcitrant agencies. The
public’s right to know demands nothing less.