Rhode Island has a long way to go
By Philip Eil, Rhode Island Current
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| Under the Charlestown Citizens Alliance's pet town administrator Mark "Stonewall" Stankiewicz, this was a typical response to an open records request. PLUS, he made you pay for it! - Editor Will Collette |
For more on the history of transparency in the Ocean State, a helpful resource is ACCESS/RI’s 2002 packet, “It’s Your Right to Know: 12 Essays on the Importance of Access to Government Meetings and Records in Rhode Island.”
In the introduction, Tom Heslin, the Providence Journal’s executive editor at the time, wrote, “Cynics are often quick to dismiss the ‘Right to Know’ as the narrow concern of media malcontents and petulant gadflies. That is akin to dismissing airline safety as the narrow concern of pilots.”
In the years after the 1966 passage of the Freedom of Information Act, many states passed public records laws of their own. Ronald Reagan — then the governor of California — signed California’s Public Records Act in 1968. Texas passed its Public Information Act in 1973.
Here in New England, Maine got an early start with its Freedom of Access Act (FOAA) in 1959. And after President Lyndon Johnson’s declaration upon signing the FOIA that “A democracy works best when the people have all the information that the security of the Nation permits,” similar laws were passed in New Hampshire (1967), Massachusetts (1973), Connecticut (1975), and Vermont (1975).
And Rhode Island’s status as an outlier became more glaring as years passed.
By 1979, when the city of Providence debated an open-records ordinance at the municipal level, City Councilor Malcolm Farmer pointed out that Rhode Island and Mississippi were the country’s only remaining states without open-records laws.
“I think that’s a disgrace,” Farmer said then. The following month, Gov. J. Joseph Garrahy signed the Access to Public Records Act.
This year marks the 45th anniversary of that landmark moment. And yet, if you talk to open-government advocates, they’ll say that Rhode Island’s late-to-the-FOIA-party status isn’t just a piece of trivia; it’s a legacy that’s tangible in the everyday administration of the law.
Information that’s easily available across state lines — about traffic data, 911 calls, police misconduct, and government correspondence — is often harder to come by here, or altogether inaccessible. Reporters and transparency advocates speak with envy about the culture of transparency in other states. And, as the Boston Globe recently reported, Ocean State journalists are charged for access to documents that would potentially receive fee-waivers at the federal level.
“Our current open-records law is out of date,” says longtime Rhode Island ACLU Executive Director Steve Brown. “It’s actually been out of date fro
m the beginning, as exemplified by how late we got on the train in the first place.”
Brown and the ACLU are among the supporters of a bill that would represent one of the most dramatic updates in APRA history. Could 2024 be the year that Rhode Island finally catches up on open records laws?
Fumbling in a dark room
Linda Levin remembers what it was like before APRA.
The emerita professor of journalism at URI and head of open-government-advocacy organization ACCESS/RI worked as a Providence Journal reporter in the 1960s. She compares the experience of seeking government documents back then to fumbling around in a dark room.
“Even if you had a good rapport with the police department, they could hide an arrest report and you’d never know it,” she said.
The passage of APRA brought some much-needed daylight into those darkened rooms. In 1987, the Providence Journal successfully sued under APRA for details of a sealed, out-of-court settlement paid by the city of Central Falls to a man who became quadriplegic after injuries suffered in police custody.
During the 38 Studios debacle, an Associated Press APRA request revealed a high-ranking official with the Economic Development Commission (since re-named Rhode Island Commerce) sought a job with the videogame company within weeks of the state’s announcement of $75 million in funding.
Yet despite these high-profile victories, denials, large fees, and other kinds of dysfunction are familiar to folks who submit requests. In 2016, a years-long battle over Rhode Island State Police records related to a party hosted by Caleb Chafee, the teenage son of then-Gov. Lincoln Chafee, ended with a denial from the Rhode Island Supreme Court.
In 2018, when State Rep. Patricia Morgan filed a request with the Attorney General’s office for info related to the office’s use of $50 million received after a settlement with Google, she waited months for a full response and received fee estimates totaling more than $10,000.
Morgan later got help from the Rhode Island ACLU, which described a response from then-Attorney General Peter Kilmartin that involved “exorbitant costs…the extensive nature of some of the redactions, and even the paternalistic way [the Attorney General] appears to have treated her.”
Beyond these specific cases, the law has received middling grades, or worse, on system-wide reviews. A 1998 APRA audit by students at Brown University and the University of Rhode Island identified significant variations across cities and departments in APRA administration.
Police departments performed particularly poorly in the review, fulfilling only 35% of the requests used to measure compliance. “In some sense, the police are quite open in their disdain for the law,” the report stated, adding that “at times their behavior bordered on intimidation and harassment.”
Similarly troubling results were found in a 2014 audit, by the transparency-focused news organization MuckRock.
“Too many agencies appear to consider complying with open records requests a burden rather than what it actually is and should be — a core mission of their agency,” the authors wrote.
Areas where Rhode Island lags behind include 911 records, as highlighted in a 2021 report by The Public’s Radio’s Lynn Arditi on potentially fatal shortcomings in Rhode Island’s 911-response system.
“Unlike in many states, 911 calls in Rhode Island are deemed confidential and are not considered public records,” Arditi reported. And last year, an ecoRI News report about traffic data stated that, while “other states have no problem giving the public access to information on where crashes are happening,” in Rhode Island, requests are “are routinely denied.”
Open-government advocates are quick to identify other deficits in our transparency laws. In a recent conversation with Rhode Island Current, WPRI investigative reporter Tim White explained that if he travels a short distance from the station’s East Providence office into Massachusetts, he’s much more likely to get access to emails to and from elected officials.
“I come 100 yards back to Rhode Island, if I request emails from the governor’s office that include an elected official — so, the governor, a state rep, a school committee member — forget it,” White said.
In February, at a State House press conference announcing the APRA reforms, the ACLU’s Brown pointed out that many states provide public, searchable databases for police misconduct complaints, which include the names of officers involved.
“Here in Rhode Island, we can’t even access redacted information about the findings of police misconduct,” he said.
“That is inexcusable.”
Periodic updates are essential
Government officials are always coming up with new ways to withhold information from the public, which prompts transparency advocates to respond with new ways to force disclosure and release, said John Marion, the executive director of Common Cause Rhode Island.
The constant tug-of-war in the fight over government information makes regular updates to APRA important.
“Because there [are] clever government lawyers figuring out how to withhold information, and then there [are] advocates trying to play whack-a-mole and knock down the loopholes that are being punched in the law,” Marion added.
Tweaks and updates over the past few decades include a 1991 provision that stated both public agencies and individual officials (emphasis added) could be fined up to $1,000 for willful violations of the law. In 1998, the definition of “public records” was expanded to include “magnetic or other tapes, electronic data processing records, [and] computer stored data…including electronic mail messages.…”
In 2012 — the last major update — the law was amended to include, among other things, a “balancing test” requiring officials to consider the public interest in requested documents that contained normally-exempt personal information instead of automatically keeping them private.
That test factored prominently in Attorney General Peter Neronha’s order last spring to release an infamous email about a Philadelphia trip by high-ranking state officials that led to the resignation of one official, an investigation by the state Ethics Commision, and a tongue-in-cheek column by the Philadelphia Inquirer that offered ideas about how Rhode Island could make amends. (One suggestion: “Give us a lighthouse.”)
Last year, after working closely with open-government advocates, lawmakers submitted bills that would, in the words of one sponsor, Sen. Lou DiPalma, “address the continued evolution of government.” The bill didn’t advance, and an updated version was re-introduced in a State House press conference last month.
“The public can only trust government when they know what’s going on,” DiPalma, a Middletown Democrat, said.
The new bill would both lower costs for those making requests and increase fines for agencies found to be willfully violating the law. It would require that documents discussed at public meetings be made available online at the same time as the meeting agenda. It would narrow exemptions that prevent the release of correspondence by elected officials.
And it would bring new transparency measures to law enforcement agencies, including ensuring the release of final reports of police misconduct and requiring body-camera footage from use-of-force incidents to be released within 30 days, with rare exceptions. It would also, seemingly in direct response to those reports by The Public’s Radio and ecoRI News, increase access to 911 calls and statewide traffic crash data.
Transparency advocates say these changes will help bring Rhode Island closer to the best practices in government transparency. And some note that a stronger APRA would also function as a response to a shrinking local news media.
“When the Providence Journal was printing newspapers and printing money, it could hire a law firm to go to court any time it was denied a record,” John Marion said. Now, with less litigation taking place on the public’s behalf, the law needs more muscle.
Without APRA, our local government would be a windowless building and taxpayers would have to accept whatever policies and press releases emerge from it, Marion said.
A strong public records law, he said, “gives us a shot to see what’s going on, and potentially fix it.”
Disclosure: The Rhode Island ACLU provided pro-bono legal representation for the author of this piece in a Freedom of Information Act lawsuit, Eil v. DEA, filed in 2015.
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