Analysis: RI overhauls open records

BRISTOL, R.I. (WPRI) – R.I. Attorney General Peter Kilmartin said a record 750 people signed up for this year’s “Open Government Summit” held Friday at Roger Williams University.

How many actually attended is unknown, but the main lecture hall was filled to capacity and many attendees were divided up into overflow rooms. According to Common Cause Rhode Island's John Marion, House Speaker Gordon Fox and Senate President M. Teresa Paiva Weed were among those who showed up.

The cynic in me thinks it was packed because lawyers need to rack up time toward “Continuing Legal Education” every year, and this is an easy way to book a few hours. Indeed, a few hundred people left right before the panel of media and government representatives (including yours truly) took the stage, which just so happened to be after they handed out certificates of attendance to show the Rhode Island Bar Association.

Also, the new Access to Public Records Act (APRA) signed into law earlier this year requires workers charged with being the gatekeeper of public information to receive training, and the summit counted toward that requirement.

But the chest-thumping transparency geek in me prefers to think many attendees also wanted to know how the new APRA law – which goes into effect Sept. 1 – will impact government at all levels.

If you couldn’t attend and you didn’t read my live tweets during the summit, here are my quick hits and takeaways. (But first, get prepared for next time by following me on Twitter: @white_tim. #shameless.)

This is by no means a complete overview of the law; I culled these from my 140-character-or-less messages that I streamed throughout the morning. (I left out two: the one where I bashed Roger Williams University for not having power outlets at every seat in the lecture hall, and the subsequent apology after I found them under the desks.)

After opening comments from Kilmartin, the main presentation was given by Assistant Attorneys General Michael Field and Lisa Pinsonneault, who I mention throughout.

- Always remember APRA encourages disclosure of information unless it falls under one of 25 exemptions. The most overreaching exemption – for items that are “personally identifiable to an individual” – was changed in the new law to add a balancing test. More on that later.

- Field said the law "doesn’t mean [the document] can’t be given out, it just doesn’t have to be.” Translation: public bodies can hand over the goods if they want to do so. A good contrast here: the City of Providence denied Ted Nesi and me the emails of former Mayor David Cicilline because they are exempt under APRA. But the R.I. Economic Development Corporation, under the auspices of Gov. Lincoln Chafee, released hundreds of pages of documents related to 38 Studios, including memos and emails.

 - A public body has ten business days just to respond to your request: they can fulfill it, deny it, or take a 20-day extension. The new law requires the agency to offer a reason why the extension is needed and a written explanation for the denial.

- Field stressed the information must be presented in its original form, and not homogenized into a summary, though some information can be redacted if it falls under one of the 25 exemptions. The new law allows requesters to specify what form they want the information in, including in an email or fax. Field said this may cut down on costs for both the agency and the requester (no more copying fees if the data is emailed). To that point, the new law requires agencies to lump fees together if a requester files more than one APRA request in a 30-day period.

- The new law raises fines for “willful and knowing violation” of the statute to $2,000.

- Both the current and new statutes state that arrest reports, including the narrative – which is essentially the officer’s version of what happened – are public records. Field and Pinsonneault used the WPRI vs. Woonsocket Police Department case as an example of an agency violating this part of the law.

- The new law requires police departments to issue arrest logs 48 hours after an arrest on weekdays, or 72 hours after on weekends. The log will include basic information such as the name of the person arrested, the charge, the person's address, etc.

- Each public agency must choose a designated public records officer or unit. It can be a current staff member. The new law also requires agencies to establish written procedures regarding how they handle APRA requests.

- The new law requires the disclosure of public employee contracts ( here's why that’s refreshing) and also requires the disclosure of contracts with outside vendors working on certain government projects.

- Balancing test: the new law states personally identifiable information is public unless disclosing it “would constitute a clearly unwarranted invasion of personal privacy.” Field emphasized that the word “clearly” is significant. He spent a considerable amount of time citing federal court rulings on the U.S. Freedom of Information Act, which provided the model for Rhode Island's new balancing test. He highlighted a key opinion from the U.S. Supreme Court that stated the balancing test leans toward disclosure if it “sheds light on an agency’s performance of its statutory duties.” In other words Field asks does “the individual's privacy interest outweigh the public's interest in disclosure?”

This will be the big test of the new law. There will likely be growing pains as the attorney general's office and the courts set new precedents. And we can all count on unscrupulous government agencies trying to use the new law to close the doors on transparency.

But all government bodies, including quasi-public agencies like the EDC, need to understand that the attorney general's office, the General Assembly and the governor made significant changes to our APRA to make our state more transparent, not to move backwards. The changes to the law will only be meaningful if those on the front lines of government implement the law the way it was intended.

Tim White ( twhite@wpri.com ) is the Target 12 investigative reporter for WPRI 12 and Fox Providence. He is also a board member of the New England First Amendment Coalition. Follow him on Twitter: @white_tim