access to public records act
By Tim White
PROVIDENCE, R.I. (WPRI) – There’s a lot to like about Governor Chafee’s new transparency website. There’s also room for improvement.
Rhode Island’s new public records law takes effect on Saturday. A great rundown from the Projo:
Come Sept. 1, at least on paper, Rhode Island will become a more transparent state.
Before adjourning in June, the General Assembly overhauled the state’s Access to Public Records Act which incorporates a new “balancing test” that public officials will have to use when deciding whether to release records requested by the public. …
It appears that some public bodies, including the Judicial Nominating Commission, will have to revise some operating procedures and release more information. …
The new law will require disclosure of additional details of employment contracts for certain government employees, including presidents of the state colleges and universities. Employees of contractors and subcontractors working on public works contracts are also subject to the amended act. …
It requires police departments to provide basic information about an adult’s arrest within 48 hours of a request, or within 72 hours if a request is made on a weekend or holiday.
By Tim White
BRISTOL, R.I. (WPRI) – R.I. Attorney General Peter Kilmartin said a record 750 people signed up for this year’s “Open Government Summit” at Roger Williams University. Here are my quick hits and takeaways.
Governor Chafee on Tuesday signed into law the open records changes pushed through the General Assembly by Rep. Michael Marcello and Sen. James Sheehan. Rhode Island was the second-to-last state to pass a public records law when it finally did so back in 1979, and this is the first significant improvement to the statute in 14 years. The changes take effect Sept. 1.
Common Cause Rhode Island has been a leading advocate for public records reform, so I asked its executive director John Marion to explain what the new law will do, and what remains to be done:
The newly amended Access to Public Records Act (APRA) makes several significant changes to what information will be made public and several significant changes to the processes for making information public.
The most significant change is the removal of the blanket exemption for personally identifiable records with the addition of a balancing test that would allow records to be kept private if it meets the standard of being an “unwarranted invasion of personal privacy.” This is the federal standard that has been in place for decades. In addition to this new standard, the law classifies several specific types of records as public, including employment contracts and pensions being received by beneficiaries. Sharp Nesi’s Notes readers will note that the latter were declared public records last year in an advisory opinion by the attorney general’s office, but we wanted to make sure those remain public records even if the attorney general’s opinion changes.
The process-oriented changes include putting into statute that you do not have to disclose who you are when making a request. This protects the requester from harassment. Also, the new law requires public bodies to have a designated person trained to handle APRA requests; requires the public body to give the records in the preferred format of the requester; and increases the fines for violations of the law by public bodies. Our public records law, last amended in 1998, was showing its age, and making sure that you can get records scanned and emailed to you, if that’s not a burden to the public body, brings the law into the 21st century.
What we proposed, but did not make it into the final bill, included lowering the number of days for a response by the public bodies from 10 to seven days and a partial repeal of the exemption for correspondence of elected officials. I hope we will be able to revisit those questions in the future because there is a real value in knowing what public officials are doing on our behalf.
Tim will have more details about the new law at 6 p.m. on WPRI 12.
• Related: With no info-nudists, RI needs public records laws (March 21, 2011)
(photo: Tim White/WPRI)
This post has been updated and revised.
By Tim White
PROVIDENCE, R.I. (WPRI) – The Rhode Island Attorney General’s office has ruled the Woonsocket Police Department violated the state’s public records laws by refusing to give WPRI 12 the narrative portion of an arrest report, charging a fellow officer with drunk driving.
Two prominent national organizations have added their voices to the chorus encouraging Governor Chafee to sign the beefed-up access to public records bill lawmakers passed earlier this week.
The National Freedom of Information Coalition in Columbia, Mo., and the Reporters Committee for Freedom of the Press in Arlington, Va., both said Friday they’ve written the governor in support of the legislation.
“The important reforms in this bill will help to ensure that the principle of open, transparent government is more than a platitude in the state of Rhode Island,” Kenneth Bunting, the coalition’s executive director and head of the Missouri School of Journalism’s Freedom of Information Center, told Chafee.
Chafee’s spokeswoman has said he is weighing whether to sign the bill after expressing reservations about some of its provisions. Neither the House nor the Senate had transmitted the bills to the governor’s desk as of mid-afternoon Friday.
• Related: Common Cause, NEFAC urge Chafee to sign public records bill (June 13)
Pressure is growing on Governor Chafee to sign a compromise reform of Rhode Island’s public records law that passed the House and Senate before they recessed early Wednesday.
The legislation would add a balancing test, modeled on the federal Freedom of Information Act, to the much-derided law. It would allow disclosure of personnel records and other information identifiable to an individual as long as the release isn’t an “unwarranted invasion of personal privacy.”
Public employees’ contracts and pension records would also be officially classified as public records under the bill, and the fines owed by government bodies for violating the law would increase. Additionally, a judge could award attorney fees to the wronged plaintiff if a public body acts in bad faith.
Common Cause Rhode Island’s John Marion said his organization “fully supports” the bill and is urging the governor to sign and implement it. “We’ve been working to expand our public records law to make more information public, and this bill clearly does that,” he said.
The second half of Ed Fitzpatrick’s Sunday Projo column was full of insights into a last-minute effort by State House insiders to kill or water down two high-profile transparency bills: Rep. Christopher Blazejewski’s campaign finance disclosure bill and Rep. Michael Marcello’s badly needed public records reform.
In both cases, the roadblock is Senate President M. Teresa Paiva Weed’s chamber. First, on Blazejewski’s disclosure bill (which she co-spsonored):
The legislation is backed by groups such as Common Cause Rhode Island and the League of Women Voters, and it has produced an unlikely combination of opponents. John M. Marion, Common Cause’s executive director, said the Rhode Island Affiliate of the American Civil Liberties Union joined Rhode Island Right to Life in fighting the bill, and legislators had told him the Catholic Church and organized labor lobbied against it.
But it’s worth remembering that the legislation was announced at a State House news conference involving the state’s three most powerful officials: Governor Chafee, House Speaker Gordon D. Fox and Senate President M. Teresa Paiva Weed. “The Senate president has been a strong supporter of this bill from the beginning, and I’m hopeful the Senate will act to pass it in the next couple of days,” Blazejewski said.
More troublingly, Governor Chafee – who came to office pledging to focus on Rhode Island’s “ABCs” (“assets, budget and corruption”) – is now joining those who want to keep Rhode Islanders in the dark about the actions taken in their names. Chafee is opposing not only Marcello’s public records bill, but even two weak Senate alternatives:
The House’s Marcello said he and the Senate’s Sheehan met Friday afternoon to try to craft a compromise that would be presented to the House and Senate in the next few days. The compromise would, for example, explicitly state that employment contracts for government employees must be disclosed, but it would not require disclosure of e-mails and other correspondence to and from elected officials in their official capacity.
In another 11th-hour development, Governor Chafee’s office contends that the legislation is too vague in establishing a balancing test to determine whether disclosing a record would be a “clearly unwarranted” invasion of privacy, Marcello said. But he said the bill’s balancing test mirrors the federal Freedom of Information Act, which has been precisely defined by years of federal case law.
Chafee’s commitment to open government is looking increasingly rhetorical – sighing that he wishes he could make the EDC’s 38 Studios meetings open but was told not to by its lawyer. Public records reform is becoming another example of such passivity. Furthermore, it’s been clear for many months that the public records bills were going to get serious attention this session – if none of these three meet the governor’s standards, where is his alternative bill? Or is he tacitly saying he’s actually fine with Rhode Island’s lousy public records law at present? Moreover, when has Chafee put real political capital behind policies to address the third leg of his “ABCs”?
The House Judiciary Committee is scheduled to vote on Marcello’s public records bill this afternoon, with a floor vote to follow Tuesday. But the Senate hasn’t scheduled any committee or floor votes on public records as of this writing. The Senate Judiciary Committee is scheduled to take up Blazejewski’s bill and Sheehan’s weaker public records bill on Monday. (Even Marcello’s bill, by the way, is losing some of its teeth – emails are no longer included, for example.)
In fairness, the Senate Judiciary Committee already has other important business on its plate for Monday – such as awarding court magistrate gigs to former state Sen. Chuck Levesque (who less than three months ago came to the rescue of Paiva Weed’s deputy Dominick Ruggerio when he was arrested for DUI) and John Flynn (legal counsel to Speaker Fox and former steward of West Warwick’s pension fund).
• Related: RI Senate fast-tracks public records bill you’ve never heard of (June 10)
(photo: Brown University)
After 14 years – and innumerable scandals – are Rhode Island lawmakers finally going to fix the state’s lousy public records law before they adjourn this month?
It remains an open question, and the ever-inscrutable Senate is the holdup. On Wednesday night, the House Judiciary Committee held for further study a strong reform bill [H 7555] written by state Rep. Michael Marcello to let him continue offering concessions to the upper chamber.
“As the legislature moves toward its typical rushed ending, they still have time to do right by the people of Rhode Island and open up more information about government for the citizens,” said John Marion, executive director of Common Cause Rhode Island, part of a large coalition that backs Marcello’s bill.
The Senate is considering two inadequate public records bills of its own – one from Attorney General Peter Kilmartin [S 2652] and another from state Sen. James Sheehan [S 2511]. ”We remain worried that the Senate bills on public records will undermine our hard work unless they are changed substantially,” Marion said.
Tim White told the House committee Wednesday he was “stunned” to discover how many restrictions Rhode Island places on the public’s access to information compared with neighboring Massachusetts. After seeing this blacked-out North Providence police report, Rep. Charlene Lima urged her colleagues to pass the bill.
The Senate must now decide whether it will let Rhode Islanders see what’s being done in their names. Pass along your perspective to Senate President M. Teresa Paiva Weed (firstname.lastname@example.org, 401-222-6655) and Senator Sheehan (email@example.com, 401-885-1988).
• Related: With no info-nudists, RI needs public records laws (March 21, 2011)
Tim White is a board member with the Boston-based New England First Amendment Coalition, which this month gave its annual Stephen Hamblett First Amendment Award to Marty Baron, editor of The Boston Globe. (Hamblett was a longtime Providence Journal publisher.)
Tim pointed me to the speech Baron delivered on Friday in accepting the award, which was republished by Dan Kennedy. For those of us who toil in the journalistic vineyards, it’s an inspiring read. Here’s a taste:
The greatest danger to a vigorous press today, however, comes from ourselves.
This is a moment in American history when the press has been made a fat target. The press is routinely belittled, badgered, harassed, disparaged, demonized, and subjected to acts of intimidation from all corners — through words and actions, including boycotts, threats of cancellations (or defunding, in the case of public broadcasting), and even surreptitious taping, later subjected to selective, deceitful editing. Our independence — simply posing legitimate questions — is seen as an obstacle to what our critics consider a righteous moral, ideological, political, or business agenda. In some instances, they have deployed scorched-earth tactics against us in hopes of dealing a crippling blow.
In this environment, too many news organizations are holding back, out of fear — fear that we will be saddled with an uncomfortable political label, fear that we will be accused of bias, fear that we will be portrayed as negative, fear that we will lose customers, fear that advertisers will run from us, fear that we will be assailed as anti-this or anti-that, fear that we will offend someone, anyone. Fear, in short, that our weakened financial condition will be made weaker because we did something strong and right, because we simply told the truth and told it straight.
Also worth reading are Baron’s comments on the many shortcomings of Massachusetts’ public records law. His criticisms apply equally well to Rhode Island’s lousy Access to Public Records Act, as Tim reminded us in Ed Fitzpatrick’s column Sunday.
By John Marion
Common Cause’s founder John Gardner once said, “Everybody’s organized but the people. Now it’s the citizens’ turn.” We have followed that mandate for the last four decades in an effort to serve the public’s interest. One of the key principles we promote is transparency in government, and that’s what Ted asked me to write a little bit about today.
If you’ve followed Ted’s pension reform coverage, then you should appreciate the important relationship between good journalism and transparency in government. Whether it’s public records and open meetings or campaign finance and lobbyist disclosures, some of the biggest beneficiaries of transparency are members of the media.
Now, I don’t think John Gardner founded Common Cause to help the media do its job. But we can’t all follow the behavior of public officials and public bodies, so we rely on the media – as well as groups like Common Cause – to do that on our behalf. And when reporters need to find out what the government is doing, they rely on the reforms we advocate for every day.
By Gary Morse
Nearly two years ago, the Bristol County Water Authority moved to get a 12% hike in local water rates. The implications of this fateful request are still reverberating in the East Bay, and the path that led from a utility increase to the threat of a lawsuit against four ratepayers has now become a news story of its own.
In early 2010, BCWA went to the Barrington Town Council to explain the need for such a steep rate increase. (The BCWA Board of Directors is made up of nine directors, with the town councils of Barrington, Bristol and Warren appointing three members each.) By the end of the meeting, Councilor Jeff Brenner was moved to remark: “Yogi Berra has nothing on some of the explanations given here tonight.”
Four East Bay residents – now known as the “East Bay Four” – decided to take the lead and began trying to find out what was really going on. Along with myself, the rest of the East Bay Four are Jeff and Janice Black of Barrington, and Bristol resident Marina Peterson of the East Bay Patriots.
To say that BCWA was not receptive to ratepayer involvement is a gross understatement. Over the course of our two-year quest, certain BCWA representatives were known for yelling at ratepayers who dared to ask questions, in an effort to scare them off and ensure no one would dare come back. BCWA was also paying its attorney handsomely to run interference against the public.
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.
By Tim White
PROVIDENCE, R.I. (WPRI) – The executive director for good government group Common Cause Rhode Island said the Target 12 investigation “Who You Know” highlights why government agencies need to take the public records law more seriously.
“Some [police] departments are very good and some departments aren’t,” said John Marion of Common Cause. “It might quite simply depend on the person you’re dealing with on the day you’re dealing with them.”
In “Who You Know,” Target 12 raised questions about two separate cases of alleged drunk driving and potential favoritism.
There have been several attempts at amending the public records law to include – among many proposed changes – stricter penalties for failing to abide by the law. Marion said though the bills haven’t passed, in recent years it has made it to the floor for a vote.
You read Ed Fitzpatrick’s terrific Sunday column about the need to reform Rhode Island’s open records law, right? I’m sure you did.
But just in case, here’s the opening:
Too often, we Rhode Islanders live in a bubble. “It’s a beautiful bubble,” said Tim White, a Channel 12 investigative reporter and New England First Amendment Coalition board member. “But we lose context. We don’t realize what it’s like elsewhere. It’s bad here when it comes to public records.”
Given Rhode Island’s reputation for corruption, access to public records and meetings is crucial. “The best thing that we could do to crack down on corruption is to make the state more transparent,” White said. “Sunlight is the best disinfectant.”
To increase that sunlight, we need to strengthen the Access to Public Records Act, which White describes as “a law designed to say ‘no,’ a law that does not err on the side of transparency.”
We should also look at how other states handle disputes over government records and meetings. During my years as a reporter at The Hartford Courant and the Albany Times Union, I saw that Connecticut and New York had set up commissions to handle open-government matters rather than (as in Rhode Island) giving all of that responsibility to an attorney general’s office, which must defend and work with the very agencies often entangled in open-government battles.
Read the rest here. Amen!
While we’re on the topic, Attorney General Peter Kilmartin had some interesting things to say about access to public records during last week’s episode of WPRI 12′s “Newsmakers,” too – saying, for example, that the City of Providence was wrong to block the public from reviewing a single one of former Mayor David Cicilline’s emails.
Find out why in a new story Tim White and I just posted on WPRI.com:
The City of Providence is blocking the public from seeing any email messages sent and received by former Mayor David Cicilline during his final two years in office.
Assistant City Solicitor Amy Crane denied Target 12′s request to see Cicilline’s emails from 2009 and 2010, a period when the city’s finances deteriorated into what his successor has termed a “category five” fiscal emergency.
Crane cited a provision of Rhode Island’s public records law that allows the government to seal “correspondence of or to elected officials with or relating to those they represent and correspondence of or to elected officials in their official capacities.” …
The Rhode Island Supreme Court ruled in 2004, however, that a government body can choose to release documents even if the public records law allows them to be kept under wraps. …
Mayor Angel Taveras refused a request to reverse Crane’s decision and release the emails. “It is the job of the city solicitor’s office to respond to [public records] requests, and the mayor trusts the solicitor’s office to make these legal decisions on a daily basis,” spokesman David Ortiz said in a statement.
Read the full story here.
(photo: Bruce Morin/WPRI)
A few years ago, a rumor circulated that Sarah Palin was thinking about moving to Rhode Island. She may not have realized it, but if she’d been our governor instead of Alaska’s her official emails might never have been released.
(4) “Public record” or “public records” shall mean all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, magnetic or other tapes, electronic data processing records, computer stored data (including electronic mail messages, except specifically for any electronic mail messages of or to elected officials with or relating to those they represent and correspondence of or to elected officials in their official capacities) or other material regardless of physical form or characteristics made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. For the purposes of this chapter, the following records shall not be deemed public:
(M) Correspondence of or to elected officials with or relating to those they represent and correspondence of or to elected officials in their official capacities.
“If you take it literally,” the Rhode Island ACLU’s Steve Brown told me, “anything that an elected official sends out or receives in their official capacity could be deemed private. One could argue that many if not all of the emails could be exempt under our law.”
Following a nearly three-year legal battle, Alaska released six boxes of documents this month that contained 24,199 pages of emails Palin sent and received during her first two years as the state’s governor. Regardless of how you feel about the former VP candidate, it was a victory for those who believe in government transparency.
“I think it’s a perfect example of how far behind Rhode Island is compared to other states,” Brown said. Rhode Island was the 49th state in the country to enact a public-records law when it finally did so in 1979. “Rhode Island was very reluctant to pass it, and when they did they enacted a law that was among the weakest,” he said. “I think the fact that it took so long shows something.”
Common Cause Rhode Island’s John Marion said officials in Rhode Island have “an overblown fear” that a narrower exemption would allow people to read emails between them and their constituents about highly personal matters. “When you’re acting in your official capacity, you should always be cognizant that what you’re doing should be subject to public scrutiny,” he said.
“When you’re a public official dealing with public matters, that needs to be disclosed,” Marion added. “It’s the government’s business that you’re performing, and the people ultimately are the government.”
A picture is worth a thousand words. Especially when most of the words have been assaulted by a magic marker.
Acting on a tip Wednesday, Tim White broke a story about a North Providence firefighter arrested for allegedly stealing painkillers from a terminally ill patient while responding to an emergency call.
To confirm the news, Tim called the North Providence Police Department and spoke to the deputy chief. He also asked for the department’s arrest report on the case. That’s common practice; Rhode Island’s public records law specifically says that “records or reports reflecting the initial arrest of an adult and the charge or charges brought against an adult shall be public.”
The most interesting part of an arrest report is usually the narrative, where the officer describes how the alleged crime was committed and how the suspect was caught. It often provides the most vivid details you read in the news article on a crime.
The deputy chief told Tim he’d send the report along, but first he wanted to redact the victim’s name. Here’s what the narrative looked like when it showed up on our fax machine 10 minutes later:
Dig that transparency!
Tim called the police department back and said, basically, “Is this a joke?” The deputy chief admitted that perhaps the redaction had been a bit extreme, and agreed to take another look. About a half-hour later, Tim got this new version of the narrative:
The second version showed the original one redacted just about everything: the initial reason for the emergency call, a whole section about a witness claiming he saw the firefighter pocket the pills, another about the firefighter being questioned about it, a third one about him allegedly dropping the pills on the couch – basically, the entire story of what happened. Why was all that hidden from the public?
On top of that, the deputy chief had already given Tim many of these details verbally during their original phone interview. So it’s not like he thought all that information should be a secret.
Also interesting – notice that the original, heavily redacted version of the narrative ends with the long second paragraph, but the second version continues onto a second page. So the original version didn’t even include the full arrest report – redacted or not – yet there was no way for us to be aware of the fact that even more information was being withheld than the redacting showed.
And even the less-redacted version of the arrest report raises questions. The deputy chief had said he was only going to remove the name of the victim, but clearly the second version excises far more than that, including full sentences.
As always, the problem here is a knee-jerk default to secrecy – “the right to no” instead of the right to know.
“I applaud the North Providence Police Department for being more transparent the second time around, but my concern is that they may have done it because I’m a member of the news media,” Tim said. “Would a regular member of the general public – who has a right to an arrest report that’s not completely blacked out – get the same treatment?”
More public records coverage on Nesi’s Notes:
This is the second of three articles based on my interview with Governor Chafee.
Gov. Lincoln Chafee is not ruling out reducing pension benefits for current state retirees and employees already vested in the system if that’s what Treasurer Gina Raimondo decides is necessary to get it on sounder footing.
“We have to fix it,” Chafee said Monday when asked about the pension system during a 45-minute interview with WPRI.com in his Statehouse office. Asked if that was the bottom line for him, the governor said: “Yes. Yes.”
But, Chafee added, “It’s not going to be easy – even my 3% [increase in employee pension contributions] is not popular.” He expressed hope that public-sector unions would support major changes, too, if it means they can promise their members they will receive the pensions they have been promised.
Chafee’s comments came the week of a state Retirement Board meeting – scheduled for 9 a.m. Wednesday – where Raimondo is set to release a study that will show whether Rhode Island’s assumptions about the state pension system’s financial health are accurate.
Chafee said he and Raimondo “share a strong feeling that this has to be done as collaboratively as possible, to get success. … If it’s going to be successful, the treasurer, the governor, the unions, Assembly leaders, all should be part of the proposal.” He referenced the 2009 report of a special legislative commission on pension changes as one potential starting point for discussions.
Local pensions could be cut
The governor reiterated his concern about locally administered municipal pension funds, many of which are in far worse shape than the state’s. His budget would create a new Municipal Accountability, Stability and Transparency (MAST) Fund that would combine increased local aid with punishments for communities that do not make their full retirement fund contributions annually.
Chafee said he has learned more about concerns expressed by Cranston Mayor Allan Fung and others that the MAST Fund’s requirements will be too expensive unless they are paired with legislative changes allowing cities and towns to reduce pension benefits. The governor said he discussed the issue at a meeting of town managers recently and is open to signing legislation allowing them to do that.
“I’d absolutely be willing to work with Mayor Fung and the towns and cities on that, if that’s of help in getting their funds solvent,” Chafee said.
Fung said Tuesday he welcomed Chafee’s support. “The question now has to be to what extent he is willing to sort of put his neck on the chopping block for those reforms,” Fung said. “That’s the critical question.”
Fung said he hoped Chafee would support “meaningful reforms, and not just maybe some of these one-offs here and there.” As a starting point, he suggested the governor should lobby in favor of a House bill, H 5884, that includes some of the changes he wants to see. A hearing on that legislation is scheduled for Thursday.
Susanne Greschner, head of the state’s Division of Municipal Finance, recently visited Cranston to hear more about the mayor’s concerns. “I’d love to be able to sit down with the governor myself sometime to see what he’s thinking,” Fung said.
‘Call the roll’ on gay marriage
Another hot topic on Smith Hill this spring is whether to legalize same-sex marriage, which Chafee supports. Proponents have expressed concern that strong opposition in the Senate and a lack of votes in the House could mean the measure does not pass this year.
Chafee called on both chambers to hold roll-call votes on gay marriage now, citing the experience of Vermont Gov. Peter Shumlin, who visited Rhode Island last month and told Chafee he was stunned by how many legislators wound up supporting legalization when a vote was finally called.
“So I say, call the roll,” Chafee said – which House Minority Leader Robert Watson tried and failed to do Tuesday.
Chafee said he was open to two legislative changes that have strong support in Rhode Island’s news industry – the creation of a stronger reporter’s shield law and the addition of a “balancing test” to the state public records act – though he said he would need to study both ideas before deciding whether to sign off on them.
The governor also reiterated that he would like to attend the eventual ribbon-cutting ceremony for 38 Studios, the video game company founded by former Red Sox pitcher Curt Schilling whose $75 million taxpayer-guaranteed loan was harshly criticized by Chafee as a candidate. The company’s employees began working from their new office in Providence on Tuesday.
Asked whether his attendance would be awkward in light of his rhetoric about 38 Studios on the campaign trail, Chafee replied: “Nah. We’re all grown-ups.”
The governor also said he has not spoken to Schilling since taking office. ”He got a good deal,” Chafee said of Schilling. “I’ve got no gripe against him.”
Chafee emphasized repeatedly that his administration wants to find more spending cuts in state government as it gets the lay of the land. “We can do more with less,” he argued, saying he wants the governor’s office to show the largest percentage decrease in spending this year. Work has already begun on the budget for 2012-13, which is not due until early next year.
The new governor also expressed surprise at the size of the state’s work force after taking a tour. “I’ve been doing walk-throughs of all the state departments, and, frankly, even with all the cuts, I’m boggled at how many people work at [the Department of Administration] over there,” he said. “It took us three days to say ‘Hi’ to everybody.”
Chafee implied he does not want to see the state’s payroll grow. “You can move somebody around maybe, if that’s where it’s needed for providing the service, but do not hire,” he said. “Find somebody, move them.”
Asked why his budget took on so many different policy changes as once, Chafee quoted Martin Luther King’s saying about “the fierce urgency of now.”
“Let’s do as much as we can,” Chafee said. “It’s going to take a long time.”
Check back tomorrow for Chafee’s thoughts on politics – including President Obama, last week’s federal budget deal and the governor’s political future.
(photo: Ted Nesi/WPRI)
Every week is Sunshine Week here at Nesi’s Notes, so three cheers for the Projo’s Ed Fitzpatrick, who used his Sunday column to detail the Hall of Mirrors that is Rhode Island’s approach to sharing public information with, you know, the public.
Ed and I – along with the three investigative reporters he interviewed, Jim Taricani, Mike Stanton and WPRI 12′s own Tim White – are intimately familiar with the default secrecy of too many people in positions of authority here and elsewhere. As Ed put it:
I’m talking about the knee-jerk “no” of control-freak government officials, the how-dare-you-ask defensiveness of some press secretaries, the trust-me-I’m-with-the-government arrogance of the elected and the appointed.
Tell it, brother! Here’s Tim’s contribution to the column:
Rhode Island laws make it more difficult for the press to bare secrets and inform the public here, Channel 12 investigative reporter Tim White said.
“Rhode Island has a reputation for being a Petri dish for corruption. Some of it is unfair, a holdover from our history, but a lot of it is justified,” White said. “The best way to fight corruption is to shine the light in dark corners of government. But the laws in Rhode Island take the batteries out of that flashlight.”
As a result, reporters must rely on sources courageous enough to leak documents that would be public record in other states, he said.
White said he has been denied access to time cards, memos and contracts with public officials. “Most recently, we were told by the Rhode Island Airport Corporation we could not have CEO Kevin Dillon’s contract because it is exempt under our public record’s law,” he said.
White said another problem is that the attorney general’s office plays a key role in deciding whether government should release documents such as police records and time cards. “Other states do it differently, like Connecticut which uses a commission – called the Connecticut Freedom of Information Commission – made up of lawyers, journalists, members of the public, to decide what is and isn’t a public record,” he said.
It’s human nature to avoid disclosure; we wouldn’t need public records laws if most officials were info-nudists. But they’re not, so we do. And those laws only work if they’re tough and strictly enforced, neither of which is the case in Rhode Island.
Reporters aren’t the only ones who use these tools, either. Providence’s internal auditor himself had to file public records requests in order to obtain financial information from the Cicilline administration, as the Projo reported:
[Former Mayor David] Cicilline initially displayed fiscal discipline, but that rigor disappeared as his administration aged and grew secretive, according to [former Providence Internal Auditor James] Lombardi.
As he tried to plumb the reserve accounts to see what was left, Lombardi recalled, the administration canceled his computer access. He was forced to make one of several formal demands for information that he made under the Rhode Island Access to Public Records Act.
He said that he learned, among other things, that the administration was not analyzing its cash flow, and risked the possibility that the city would run out of cash to pay current expenses.
Denying public records requests isn’t the only way officials avoid disclosure, of course; simple stonewalling is used, too. (Remember David Cicilline’s initial refusal to talk about the damning report on Providence’s finances?) A favorite recent example of mine is the EPA keeping Californians in the dark about the impact the Japanese nuclear crisis is having on them:
EPA officials, however, refused to answer questions or make staff members available to explain the exact location and number of monitors, or the levels of radiation, if any, being recorded at existing monitors in California. Margot Perez-Sullivan, a spokeswoman at the EPA’s regional headquarters in San Francisco, said the agency’s written statement would stand on its own.
Critics said the public needs more information.
“It’s disappointing,” said Bill Magavern, director of Sierra Club California. “I have a strong suspicion that EPA is being silenced by those in the federal government who don’t want anything to stand in the way of a nuclear power expansion in this country, heavily subsidized by taxpayer money.”
Will the squeaky wheel get the grease?
Regular readers may recall that I wrote at length last month about Tim White’s and my contention that a form used by the R.I. Department of Transportation violates Rhode Island’s (lousy) Access to Public Records Act. (See here and here.)
At first, RIDOT disagreed. So we asked to interview a lawyer there who was prepared to defend the form’s legality. Eventually, we were told the matter had been bumped up to lawyers with the R.I. Department of Administration. Fine, we said – we’ll interview a lawyer from there. Since then, we’ve been waiting for a response as state officials held a series of meetings.
Today I got an explanation for the delay – the matter has now been bumped up to the highest level: Governor Chafee’s office. The governor’s senior legal counsel herself, Claire Richards, has taken our case, spokesman Mike Trainor confirms.
“We’re a new administration, and on something like this, when you view it in light of how high a threshold Governor Chafee set for openness and transparency, we just want to have our own legal counsel take a look at the existing process and be informed in this case,” Trainor said. “And that’s why we’re doing this.”
How long will it take?
“I don’t think it’s going to be very long at all,” Trainor said. “A week or so and we’ll probably have a recommendation from Claire as to whether any changes ought to be made in keeping with this administration’s commitment to openness and transparency.”
Good for them! We’ll be eagerly awaiting Richards’ decision.
In the polemic I posted a week ago about Rhode Island’s lousy Access to Public Records Act, one example I cited of an agency that fails to comply with the law was the Department of Transportation.
DOT’s APRA request form asks individuals to check a box affirming they are not requesting information that will be used to sue the state. Here’s how it looks on the PDF:
Tim White and I say that’s illegal. Section 38-2-3 of the law clearly states the following:
(h) No public records shall be withheld based on the purpose for which the records are sought.
That’s about as clear as legal writing ever gets. It doesn’t say “based on the purpose for which the records are sought except when the purpose is to sue.” Perhaps you could argue the law doesn’t preclude them from asking – but that’s certainly not what it’s intended for.
Unsurprisingly, DOT’s lawyers take a different view. “It’s a way for the legal department to understand who is requesting the information, purely because you’re not supposed to request the information that way if you’re suing the state or the department,” spokeswoman Dana Nolfe told me. “That’s what’s trying to be clarified, and that’s the only thing that’s trying to be clarified here.” Other states agencies ask a similar question, she added.
So what happens if you don’t bother to check “is” or “is not” on DOT’s form? In our case, nothing; our investigative unit recently requested information from the department, declined to check anything off, and received a response despite that.
That’s because we’re reporters, Nolfe said. The question “has to do with lawsuits, so unless the media is suing the department it would be an irrelevant question,” she said.
But that’s part of what we’re trying to get across here. There’s a reason it’s not called the “Reporters’ Access to Public Records Act.” Sure, journalists use it more often than most people because of our jobs, but members of the public are supposed to be able to get these just as easily as we are. That’s why they’re called public records.
And that leads to another point: Anything that makes it more difficult – or more intimidating – for average citizens to request an official document makes it less likely they’ll do so, which is a backdoor way of avoiding disclosure. That violates the spirit, if not the letter, of the law.
“As members of the media, we have to deal with these things all the time,” Tim said. “I think about Joe and Jane Public going in there and being intimidated by these questions, and it may dissuade them from trying to get information that is in the public realm. It can be an intimidating process.”
I’d also note that in Tim’s four-and-a-half years as an investigative reporter in Rhode Island, DOT is the only public agency outside of law enforcement that ever made our team come back, fill out a form and physically bring it to them in order to make a formal records request.
Which brings me to my last point. APRA isn’t some sort of legal football game – it’s not Tim and Ted as Bill Belichick versus DOT as Rex Ryan, trying to see who can gain an advantage based on a precise reading of the rules. Weak as it is, APRA exists because the General Assembly has decided government documents should be available to the public.
Agencies are required to have written APRA policies, but they don’t have to require APRA forms. They don’t have to drag their feet. They don’t have to force us to appeal to the attorney general. They can choose to be accessible and transparent. The ball is in their court.
Lincoln Chafee has promised his administration will be transparent and open. I take him at his word – though Barack Obama said the same thing and hasn’t followed through. So I’ll make my own promise – to keep an eye on whether Chafee does what he said he would.
Update: DOT’s Dana Nolfe, a good sport, writes in to say:
1. While dropping off an APRA request is always acceptable, the form which can be found on RIDOT’s website can also be faxed or mailed.
2. I did not say that your request for information was granted without checking the box because you were a reporter. I said that it was because you weren’t suing the state. Anyone can submit the form without answering the question and it is up to the Legal Department’s discretion to respond. APRA is not supposed to be a way around the discovery process.
On the first point, good to know. On the second, I stand by my point: How did DOT know we weren’t suing the state? Because we’re reporters. If Random Rhode Island Citizen Tim White, a construction worker, had filed the request, would they have assumed he wasn’t suing the state, even if he failed to tick off one box or the other?
If you missed it in Sunday’s Projo, be sure to read reporter Tracy Breton’s long look at how the state’s Access to Public Records Act blocks Rhode Islanders from learning about the people who become judges here – more evidence of why APRA reform is badly needed here:
In Rhode Island, the public also has no right to know whether someone being considered or selected for a judgeship has ever been accused or convicted of a crime, how much debt they have, whether they are current on paying their taxes, have ever filed for bankruptcy, or are addicted to drugs or alcohol.
All of these things are the subject of inquiry by the state’s Judicial Nominating Commission, the “independent, nonpartisan” state body that screens candidates for the judiciary. But the answers, which are in a personal data questionnaire that is part of the judicial application process, are kept confidential and off-limits to public scrutiny.
The JNC adopted rules years ago making judicial applications secret, and the attorney general’s office, in the first interpretation of the commission’s policy, says that is OK.
Lincoln Chafee’s first act as governor Tuesday was to issue an executive order [pdf] requiring his employees to follow the Rhode Island Code of Ethics and judgments from the Rhode Island Ethics Commission as they carry out their duties.
One of the passages in the four-page document reads as follows (emphasis mine):
10. In addition to the foregoing, all officers and employees under my jurisdiction shall be mindful of their responsibilities under law under the Access to the Public Records Act, as stated in Title 38, Chapter 2 of the Rhode Island General Laws, the Open Meetings Act, as stated in Title 42, Chapter 46 of the Rhode Island General Laws, and other similar laws dealing with government transparency.
That’s fine as far as it goes, but it misses the much bigger problem: Rhode Island’s public records act is pitifully weak – almost insultingly so.
You don’t have to take my word for it, either. Ask Tim White, who’s a newly elected board member on the New England First Amendment Coalition and has schooled me on all things APRA, which was first enacted in 1979.
“In essence, it was written to essentially say to the public: ‘No, you can’t have this,’ ” he says. “There are loopholes throughout the legislation that make it very easy for government bodies to say no. And open-government organizations as well as journalism organizations like the Society of Professional Journalists have repeatedly said that Rhode Island has one of the worst laws in the country.”
How do I loathe thee, APRA? Let me count the ways.
Inconsistent. It often seems as if no two government offices, from the Department of Transportation to a town hall, interpret the public records act in the same way. Decisions about what information gets handed over routinely come down to the whims of the individual who receives the request.
Misunderstood. Part of the reason APRA is interpreted so inconsistently is that the officials who receive our requests often just don’t know much about it. There’s a nearly across-the-board lack of understanding about what government agencies must do to comply with the law. DOT, for example, makes you fill out a form that asks why you want the information – which is technically illegal.
Unbalanced. In other states, the public records law contains what’s known as a “balancing act,” which requires officials to weigh the potential negative consequences of divulging information against the public’s right to know how their government operates. Not here.
Pro-leak. APRA’s weaknesses encourage individuals to take it upon themselves to make information available to the public – by leaking it to reporters like Tim and me, which puts the employee and the journalist at risk professionally and legally. But if there’s no other way to get information out there, it’s going to happen.
Toothless. If you file a complaint about an APRA request that gets fully or partly denied, who decides on the complaint? A lawyer in the attorney general’s office – an employee of the same government that is fighting the records request in the first place. Michael Field, who holds that thankless job here in Rhode Island, is widely respected, but the law puts him in a very difficult position. And if Field decides against the complaint, the next step is to appeal to the judiciary – a costly and difficult process that may not be feasible.
Let me give you a real-world example of how APRA interferes with obtaining information that the public should be allowed to know.
APRA requires agencies to disclose “remuneration.” You may remember that last year Tim and I did an investigation into executive pay at the Rhode Island Airport Corporation, the quasi-public agency that runs T.F. Green. We wanted to know something specific: how much were top managers there being paid in annual bonuses, which are given at the discretion of RIAC chief Kevin Dillon (or, in the case of Dillon’s own bonus, the board)?
RIAC replied by sending us a spreadsheet with the “gross salaries” – i.e., total cash paid over the course of the year in wages and bonuses – for every employee at RIAC. It showed Dillon made $296,010 in 2009. We asked them to break that figure down so we could see how much of it represented his annual performance bonus.
RIAC refused because the bonus is decided by provisions of Dillon’s contract, which the agency claimed is a confidential document the public cannot inspect since it reflects personal information about him as an employee.
“The way our law is written, anytime the governor signs a bill into law it’s essentially closed to inspection – because his name is on it,” Tim says. “That’s how bad our law is.”
I asked Mike Trainor, Chafee’s spokesman, whether the governor would support strengthening APRA – something promoted by Common Cause Rhode Island and state Rep. Edith Ajello, among others – and he said the administration hasn’t considered that yet. Fair enough – Chafee only took the oath of office two days ago.
In the meantime, I asked Trainor what steps Chafee’s administration would take to comply with his executive order by making sure employees understand APRA and then follow it. (To his credit, Attorney General Peter Kilmartin is holding a seminar about just that next week.)
“Implicit in this order – and maybe not explicit – is the notion of training at all levels on ethics and issues like the information act,” Trainor replied. “Each agency, as the executive order says, is required to assign an ethics officer at every department of state government, and I believe what you’ll see following those designations – at least, it’s the expectation – that there will be significant additional training, leveraging the resources of the Ethics Commission.”
With a new governor in office, this would be a great opportunity for employees at all levels of government in Rhode Island to learn about APRA – and for lawmakers to bring our law into line with those of other states. Let’s watch and see what happens.
Update: Common Cause’s John Marion writes in to say while his group supports APRA reform, three other organizations deserve the lion’s share of credit for pushing it: the state’s ACLU chapter, the Rhode Island Press Association and ACCESS/RI. Marion also notes state Sen. Michael Lenihan was the leading voice on the issue prior to his retirement.