The Block Island Times
http://block-island.villagesoup.com/p/1099659

Is R.I.’s public access law too broad?

Legal expert: "Ridiculous in scope"
By Stephanie Turaj | Feb 23, 2014

The stated purpose of Rhode Island’s Access to Public Records Act (APRA) is to allow just that: public access to documents and information created by elected and appointed officials.

But some experts are claiming that the 25 exemptions that have been added to the law since it was passed have produced just the opposite effect. In fact, some legal experts have told The Block Island Times that the state’s statute has some of the most far-reaching language they’ve seen in any law of that type.

The reason this topic came to the attention of The Block Island Times is because The Times requested a series of documents from New Shoreham Town Hall. Town officials denied this request, citing an exemption in the APRA as the reason for this denial.

The B.I. Times requested, “Emails from Town Councilors and Town Manager Nancy Dodge concerning [the] Town Manager contract (between June 1 and September 3, 2013).”

Town officials responded in a letter dated Sept. 30, “In reviewing the request, it is apparent that the records requested are exempt under the Access to Public Records Act [section] 38-2-2(4) … The act continues to list 25 classes of records which are not public, including ‘(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.’”

The letter, written by Town Clerk Fiona Fitzpatrick continued, “It is clear the emails from or to the Town Council (elected officials) are exempt from disclosure.”

It was this line that caught the attention of The Times: “Correspondence of or to elected officials with or relating to those they represent and correspondence of or to elected officials in their official capacities.’”

That language seemed to cover any and all correspondence and so, if that was the case, what did the public actually have access to?

Steven Brown, executive director of the Rhode Island branch of the American Civil Liberties Union (ACLU), said of exception (M), “it is one of those exemptions that has not been cited often — if read literally it would be ridiculous in its scope.”

The history of the APRA

Rhode Island passed its version of an open records law in 1979. It was the 49th state to enact such a law.

The APRA, defined in Chapter 38.2 of the Rhode Island General Laws, states, “The public’s right to access public records and the individual’s right to dignity and privacy are both recognized to be principles of the utmost importance of a free society. The purpose of this chapter is to facilitate public access to public records.”

According to the APRA, a public record includes documents, papers, letters, maps, books, photographs, and any other data that involves official government business.

“The purpose of the act is, you could say, transparency,” said Ross Cheit, a political science professor at Brown University. “But why transparency? It’s for accountability, so people can have faith in their government, so you can hold the government accountable for its actions.”

Michael Field, the Rhode Island Assistant Attorney General and chief of the Open Government Unit, briefly explained the history of the APRA to The Block Island Times. He said that the law was passed following the Watergate Scandal in the 1970s.

According to Field, the act was introduced into the Rhode Island General Assembly in 1976 by then-state Representative Ernest C. Torres.

“The idea was to provide government accountability through public records,” said Field, who added that the act was modeled after a federal law, the Freedom of Information Act (FOIA).

Joe Cammarano, a politics professor at Providence College, echoed Field’s comments about the APRA’s passage.

“The 1970s ushered in a period where there was a consensus among office holders and intellectuals that more public access to information was better, that transparency was important,” said Cammarano.

“[The law’s passage] happened in a post-Watergate era, with the Nixon administration not telling the truth and sometimes lying about what was in public records. Rhode Island was part of a wave; they didn’t create the wave, they rode the wave,” said Cammarano.

However, with its passage in 1979, the original law included 19 exemptions. The law was later amended multiple times, with exemptions added. The APRA currently lists 25 exemptions to public records.

Exemptions include medical records, documents that would reveal military secrets, credit card numbers, and some personnel records.

Exemption (M) was part of the original language of the law passed in 1979. The law was later amended 13 times, from 1980 to 2013.

“What we’ve seen, as is the case of many laws, once [the APRA] was passed, the parameters were broad. It’s been revised a number of times to create exemptions,” said Cammarano.

The most recent significant amendment was made in 2012, according to Field. Changes at this time included making public personnel records of government officials and employees, except when disclosure would constitute “an unwarranted invasion of personal privacy.” Previously, these records were private under the APRA.

A broad exemption

Does a law that includes 25 exemptions give more protection to privacy of government documents, instead of allowing them to be public? Some seemed to think so.

“The open meetings law was designed to give more faith in the government. The provisions [exceptions in the law] do not do that; these provisions actually undermine that,” said Cammarano.

Cammarano said he wasn’t aware of exemption (M) before The Block Island Times approached him about it.

But after reading (M), he said its purpose appeared to be to allow politicians a private debate without the public being privy to the conversation. If all debate was public, Cammarano said, this might prevent politicians from speaking their mind.

“That part [exemption] presumes that there’s a requirement to protect the privilege of debate,” said Cammaranno, “There’s an assumption that in order for elected officials to make good decisions, there’s a need to protect any kind of communication. The state government has a tendency to be conservative [in what they release]. And people are not very careful about what they send in emails.”

He continued, “In my opinion, of my professional knowledge, this is part of the tendency for public officials to want to conceal rather than to be transparent. There’s no real logical reason to it. It’s part of the problem in Rhode Island. They [the government] think the public serves them, not that they serve the public.”

Cammarano also serves as a member of Common Cause Rhode Island, a branch of a national organization that lobbies for more open government.

Robert Ellis Smith, publisher of The Privacy Journal, a monthly newsletter about individual privacy, also spoke to The Block Island Times about the exemptions in the APRA. Smith is a Block Island resident.

He also was not previously aware of exemption (M) in Rhode Island’s APRA.

But after hearing about it, he commented, “I’m surprised that it’s on the books. I think the only way to look at the rationale for it might be for giving privacy to constituents, if it’s between a constituent and an elected official. As for between elected officials and between employees, I think we have a whole history of precedents [to decide] that.”

As for other exemptions in the law, he said two in particular are commonly seen in other states’ public records acts. One commonly seen is to prevent access to personnel files and medical files, he said.

The other exemption is to protect the release of “any information, clearly unwarranted, that invades personal privacy.”

But Smith said, “There is a vast mountain of interpretations on what personal privacy means. Most town officials think it’s a blanket exemption.”

He said that local officials should look to past precedents set on open records requests to help determine whether or not a document should be released. However, this is not always done, as the “knee jerk” reaction of local officials is to deny a request, Smith said.

“Any invasion of privacy is not grounds for excluding documents from the public,” said Smith. “It’s only if it’s a clearly unwarranted [request]... The record keeper has to see it’s clearly an invasion of personal privacy — this applies to people’s privacy, but it doesn’t meant it applies to secrecy of the government.”

Under the APRA, any individual can make a request to receive public documents. The individual does not have to state the reason for the request. After a request is made, the government agency has 10 business days to provide the documents, or give a reason for denying the request.

If the government agency does not reply within 10 days, or if it denies a request not according to the law, the individual who made the request can appeal it to the Rhode Island Office of Attorney General Open Government Unit.

Rhode Island compared to other states

“I don’t think there’s ever been a feeling in this state [Rhode Island] that things have been transparent,” said Brown Professor Ross Cheit. “It’s almost a presumption that things should not be public, despite some things that have to be. I think there are many public officials who have never been in favor of public access.”

Almost all states have laws that define how an individual can access public records.

However, Cheit commented that it would be difficult to compare different states because even if the law says one thing, government agencies in other states might interpret the same language in different ways.

Smith said some states have laws that give a stronger recognition to freedom of the press than others.

“New York state and Minnesota probably have the strongest leaning ones toward public access,” Smith commented.

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