White: Cranston cop out on public records hurts right to knowDecember 20th, 2011 at 6:00 am by Ted Nesi under Nesi's Notes, On the Main Site
By Tim White
A case of a police department apparently cooking the books is being obscured from view thanks to a sloppy translation of Rhode Island’s public records laws.
In October, The Providence Journal’s Amanda Milkovits ran a superbly reported story on police misconduct complaints in Cranston that were essentially tucked away, seemingly to do nothing more than collect dust. The report points out the previous police chief, Col. Stephen McGrath, had touted a sharp decline in police complaints in a 2007 annual report. But that might have been nothing more than a sleight of hand, according to an internal investigation.
Here are the findings from Milkovits’ article in a nutshell:
… according to an audit ordered by current Police Chief Marco Palombo Jr., the real reason the number of complaints dropped was that instead of logging all of the complaints, the department’s internal-affairs unit was diverting some into a “file report,” where they vanished from the log-book, statistics, and, apparently, investigations.
Milkovits wrote four excruciating paragraphs detailing why everyone and their lawyers couldn’t, or wouldn’t, explain why data on officer complaints vanished into a virtual drawer.
The former chief, McGrath, said there was a “simple explanation” but he couldn’t offer it because of an ongoing hearing into the conduct of an officer. Milkovits accurately pointed out that McGrath is not bound by departmental confidentiality because he no longer works for the department.
The internal affairs officer during the time in question referred The Journal to a lawyer, who said he was “not free” to respond. Money well spent.
The explanation that should make citizens spit out their coffee, though, came from the current chief, Col. Marco Palombo.
Though the colonel should be lauded for ordering the audit in the first place, his explanation for withholding such crucial details – like what kind of complaints were hidden and whether they were properly investigated – is a cop out. (Pun absolutely intended.)
According to the article, Palombo stated he couldn’t disclose the information because “his hands were tied by the state Open Records Law, which exempts investigatory records.”
To me, that statement goes to the heart of what is wrong with the shoulder-shrugging attitude toward transparency in Rhode Island. The very law that is written to disclose how a government “for the people” operates is wielded like a medieval weapon to crush information before it sees the light of day.
Let’s be clear: the colonel’s hands are not bound by our Access to Public Records Act, or APRA. The Rhode Island Supreme Court ruled in 2004 that the APRA “allow[s] public agencies to withhold documents, but do[es] not require withholding.” In other words: the Cranston Police Department can release the information if it wants – it’s just not, unfortunately, legally obligated to do so.
The latter part of that problem is being tackled with an effort to rewrite our public records statute led by such organizations as Common Cause Rhode Island, the Rhode Island Press Association and the New England First Amendment Coalition, where I am a board member.
But even under the current law, the Cranston Police Department will not be fined by the attorney general’s office for releasing the information. In fact, one can easily argue it is far more cost effective for a public body to say “yes.” From experience, I can tell you the legal cash register rings when an agency feels it needs an attorney to come up with why it shouldn’t be transparent.
The department also claims it can’t reveal the information because of an officer’s ongoing bill of rights hearing. That is entirely another issue, column and, frankly, excuse not to disclose information.
The Cranston example begs the question: what would happen if the people who filed a complaint against an officer wanted to see the report? They are a party to the process; would they be told the public records law and an ongoing hearing prevents them from knowing the status of their own case? And if they were provided the information and they, in turn, handed it over to the Journal reporter, would they be arrested for violating our public records act? The answer, obviously, is no.
Again, the department is apparently trying to dig into questionable policing and look inward at their policies and practices. This is clearly a positive thing. But the issue raised in the Journal article transcends what is happening at the Cranston Police Department.
Until our law is changed to force taxpayer-funded agencies to be open and transparent, public officials need to rely less on lawyers and more on courage and a clear understanding of our public records act. The nothing-I-can-do-about-it attitude erodes public trust in government. That’s something already in short supply in Rhode Island.
Tim White is the investigative reporter for WPRI 12 and a board member for the New England First Amendment Coalition. You can read his investigations at wpri.com/target12 and follow him on Twitter: @white_tim
Ted Nesi will return on Wednesday, Dec. 28.