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.

Read the rest here. For more information, check out the RI ACLU’s new overview.

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.

That reference to correspondence of elected officials includes all of David Cicilline’s emails from his time as mayor of Providence, which Tim White and I tried (unsuccessfully) to obtain last year.

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.

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)

David Scharfenberg talks to Tim in The Providence Phoenix:

I’M WONDERING IF YOU COULD PUT IN PERSPECTIVE JUST HOW AWFUL RHODE ISLAND’S PUBLIC RECORDS LAW IS AT PRESENT. I have worked in other markets and when I came here I was absolutely stunned to find how much was sealed from public inspection. And as I got more familiar with our public records law, I realized that Rhode Island is in the dark ages.

Rhode Island has a reputation [for] corruption — it’s not always fair, but some of it is earned. And I think the public records law has a lot to do with it, honestly. I’m not being overdramatic here. I think that because public records law keeps so much sealed from inspection, it’s created a petri dish for bad things to grow in the dark.

• Related: Common Cause, NEFAC urge Chafee to sign public records bill (June 13)

Rep. Marcello cracking the books

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.

(more…)

McCaffrey

The Rhode Island Senate can pass a public records bill with lightning speed when its leaders want to.

Senate President M. Teresa Paiva Weed’s upper chamber is a major roadblock to passage of Rep. Michael Marcello’s widely supported public records changes. The Senate Judiciary Committee has finally scheduled a vote for Monday on a weaker alternative by Sen. James Sheehan, more than three months after he introduced it and just days before lawmakers adjourn.

There was no such delay when Senate Judiciary Committee Chairman Michael McCaffrey, D-Warwick, decided he wanted to make his own public records changes – he pushed a bill on the topic through the Senate Labor Committee last Thursday, just two days after he introduced it. The vote was 5-0, with five members absent; the full Senate is scheduled to vote on the bill Monday.

“In my four sessions at the General Assembly I’ve never seen a public records bill in the Labor Committee,” John Marion, who heads Common Cause Rhode Island, told WPRI.com on Sunday. Despite Common Cause’s longstanding advocacy on public records, Marion didn’t hear about the bill until a few days ago.

(more…)

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.

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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.

Read the rest of this story »

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.

That’s because Rhode Island’s pitiful public records law carves out a sweeping exemption for politicians’ official correspondence. Here are the two relevant sections (emphasis mine):

(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:

• With no info-nudists, RI needs public records laws (March 21)
• Chafee’s top lawyer reviewing public records rules (Feb. 17)
• There’s a reason we call them ‘public’ records (Jan. 13)
• RI public records act enshrines the right to ‘No’ (Jan. 6)

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:

• With no info-nudists, RI needs public records laws (March 21)
• There’s a reason we call them ‘public’ records (Jan. 13)
• RI public records act enshrines the right to ‘No’ (Jan. 6)

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.