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.
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.
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.
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 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:
After the Department of Health picked three winners from the 18 applicants who wanted to sell medical marijuana at Rhode Island’s first compassion centers, officials there refused to name the other six applicants it found to be qualified or release the scores each received, despite my colleague Walt Buteau’s request.
The department’s spokeswoman, Annemarie Beardsworth, told me its legal counsel had determined that “individual scores of the applicants are considered to be part of the deliberative process and therefore are not public record.”
“Not public record,” eh? Them’s fightin’ words. (Not that I blame Beardsworth, who’s just the messenger here.) So on Monday I filed a formal APRA request to obtain the compassion center documents. Under Section 7 of Rhode Island’s Access to Public Records Act, the department then had 10 days – until April 4 – to respond.
Happily, I received a response today. Less happily, it informed me the department is exercising its right to a 30-day extension under the same section of the law.
The reason cited was “the nature of the materials requested and the complexity of the issues that are raised relating to your request,” Adelita Orefice, a veteran bureaucrat who’s now executive director of the department’s Division of Environmental Health Services and Regulation, told me in her letter.
The new deadline is May 2. I’ll keep you posted.
More public records coverage on Nesi’s Notes:
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?