Freedom of information and the importance of auditing

by Ross Cheit

How well does the Open Records Law work in Rhode Island? How well does the Open Meetings Law work? Nobody really knows. There are anecdotes, complaints, and occasional lawsuits, but no overall figures. The freedom of information laws in Rhode Island are enforced by the Office of the Attorney General. But the Attorney General conducts no systematic surveys or spot checks to insure that the law is being enforced. Instead, the office relies entirely on complaints. There are also laudable efforts to educate public officials and citizens. But whether those translate into the kind of open government required by law is not clear.

In 1996, a group of students from Brown University’s Taubman Center for Public Policy designed the first statewide effort to examine the implementation of the Open Records Law and the Open Meetings Act in Rhode Island’s cities and towns. The open records portion of the study sought to test the accessibility of various documents and compliance with the statutory limit for photocopying charges (15 cents per page). The field work, a massive scavenger hunt of sorts, was done by journalism students from the University of Rhode Island working in conjunction with the students from Brown. The researchers recorded the responses to all requests for documents and assessed how they were treated in the process. The attitudinal portion of that assessment was subjective, but the study was designed to include multiple observations from every office surveyed in order to assure that no jurisdiction would be rated poorly without multiple bad experiences. The researchers also kept track of what questions they were asked. The law provides access to public documents without the necessity of providing identification and without having to provide a reason for wanting the documents. The researchers kept track of how often they were asked for identification and how often they were asked why they wanted the documents requested. The open meetings aspect of the study involved a detailed analysis of minutes collected from school committees and city and town councils across the state.

The results, published in April 1997, were quite mixed. The best results were from city and town clerks. They did an excellent job of complying with requests for basic information (minutes and agendas of city and town councils, for example). Almost all cities and towns complied with the statutory limit on photocopying charges, but four jurisdictions did not. There was even a police department with a posted sign in violation of the state statute. The school departments also performed extremely well in terms of responding to requests for information. Many of them provided documents free of charge. The minutes that were analyzed for compliance with the requirements of the Open Meetings Law were less heartening. Most failed to live up to at least one statutory requirement. Votes and attendance were not always recorded in detail; a few errors were more significant, particularly with regard to executive sessions. Executive sessions are closed to the public subject to provisions that were not always honored, including specifying one of the statutory reasons for going into closed session.

The worst results were from the police. The study involved three separate requests for police documents, all clearly covered by the Open Records Law: police logs, recent initial arrest reports, and any police brutality complaints (with names redacted, as provided by law). Not a single one of Rhode Island’s police departments provided information on police brutality complaints even though there is a Rhode Island Supreme Court case directly on this point, upholding the citizen’s right to access to this information. The overall statewide compliance rate for the other requests for police records was a miserable 35 percent. While the police were unlikely to provide access to the documents requested, they were twice as likely as city clerks or school department clerks to ask for identification or for a reason for the request. Most police departments did both.

A follow-up study, Open or Shut?, was conducted in 1997-98 by undergraduates at the Taubman Center at Brown University with the assistance of volunteers from Common Cause of Rhode Island. A primary component of the study involved access to police records since that was the area identified as most problematic in the first study. The 1998 results were only marginally better than the 1997 findings. If compliance is measured by whether the requests resulted in any kind of positive response, then there was significant improvement over the previous year. The researchers received some kind of positive response to almost two-thirds of requests, although many of those responses were not fully compliant with the law. Of course, a twothirds compliance rate is still miserable, but it was better than the year before. A common problem was not releasing the narrative portion of the initial arrest report. The police departments in only eight of Rhode Island’s 39 cities and towns were fully compliant. But those departments demonstrated that compliance is easily attainable.

This study also tested accessibility of the terms of lawsuits settled against municipalities. A Rhode Island statute, enacted in 1991, provides that such settlements are public records. Through a painstaking process involving the civil court database, multiple lawsuits were identified in each city and town. Written requests were sent to the city or town solicitor and, for the delinquent tax cases, to the tax assessor. These local officials were remarkably nonresponsive. Overall, the terms of requested settlements were obtained in only 32% of the cases. There were very few outright denials, but many failures to respond (to repeated requests) and some very weak excuses.

A third study in this series, conducted exclusively by Brown undergraduate students, was published by the Taubman Center in October 2000. The study, Public Courts, Private Records, included a major section about the expungement of criminal records — an issue of taking public information out of the public domain. The results concerning expungement demonstrated that a significant number of expungements were not authorized by statute. This study also sought to examine the trends in the sealing of civil court records. The results suggested that sealing is not a widespread phenomenon, but some of the examples of sealed records contained limited explanations of even the basic reason for sealing the record. Finally, this study included a follow-up concerning access to settlements of municipal legal claims. Requesting settlements from school departments and from city and town solicitors resulted in an overall compliance rate of 71 percent. School departments were somewhat more responsive than city and town solicitors were. The results were much better than the year before, but several jurisdictions earned the dubious distinction of not responding to legitimate requests for such information two years in a row.

There are two obvious implications to these studies. First, freedom of information laws are not selfimplementing. Just because the law provides for access to various aspects of government does not mean that citizens will experience that kind of openness. Moreover, relying exclusively on citizen complaints is a sure way to continue this underenforcement of the law. People who are denied information by public officials do not necessarily know that their rights have been abridged, let alone know how to complain. And who has the determination to follow through with a formal complaint? Whatever the answer, the number of complaints filed in a given year reveals very little about how well the law is actually being applied. The only way to know how well a law operates in the world is to test performance in a systematic way.

The studies in Rhode Island all indicate that there are serious implementation problems with freedom of information policies. While there was some improvement since 1997, the overall performance of police in the second study was still far from satisfactory. City and town solicitors, apparently more attuned to professional norms of secrecy than to the requirements attendant to the job of solicitor, were also unsatisfactory in their overall levels of compliance. In light of this systematic aggregate evidence, it is discouraging that Attorney General Sheldon Whitehouse does not appear to recognize that this is a problem. Whitehouse told the ACCESS/Rhode Island board of directors that survey results demonstrated nothing more than “he said, she said.” One possible reason for indulging the position of many police chiefs that public access is “not a problem” is the built-in conflict of interest that the Office of Attorney General has trying to enforce open government requirements on the very police departments that it relies on for criminal prosecutions.

State press associations and academic groups have conducted freedom of information audits in twentytwo states at most recent count. All of these studies demonstrate the kinds of problems that public offi- cials in Rhode Island have yet to acknowledge. The Attorney General could, of course, send inspectors out into the field to measure compliance for himself, much like the Department of Labor does in enforcing minimum age laws. Or the Secretary of State could take the kind of leadership position that James Langevin did when he held that office. There is a clear need for stronger leadership and enforcement of laws assuring Rhode Islanders of an open and accessible government. Until enormous gains are made in this area, however, the importance of being audited for compliance with open government requirements is that it highlights the critical gap between statutory rights and real world outcomes.

References and further readings:

■ The Rake v. Gorodetsky, 425 A. 2d 1144 (RI 1982) This is the leading Rhode Island case on public access to police brutality reports. The Rake was a student newspaper at Brown University. See also, Direct Action for Rights and Equality v. Gannon, 713 A.2d 218, 225 (RI 1998).

■ Electronic versions of the three audits described in this article can be accessed through the home page of the Taubman Center at Brown University: http://www.brown.edu/Departments/ Taubman_Center/

■ The Freedom of Information Center at the University of Missouri-Columbia maintains an excellent online summary of FOI audits carried out across the country: http://web.missouri.edu/ ~foiwww/openrecseries.html Professor Ross E. Cheit is an associate professor of political science and public policy at Brown University.