Complaints and compliance in Rhode Island

by Linda Lotridge Levin

Each year the attorney general of Rhode Island receives dozens of letters from citizens and public officials complaining about possible violations of the state’s Access to Public Records Law (R.I. Gen. Laws 38-2-1 et seq.) and the Open Meetings Law (R.I. Gen. Laws 42-46-1 et seq.). The attorney general assigns one of his or her assistants to research the complaint to determine its merit and then hands down an opinion, based on interpretation of the state statutes.

For instance, in 2000, the attorney general handed down six official rulings and 29 unofficial rulings relating to open meetings, and eight official rulings and 28 unofficial rulings relating to public records. The previous year, he rendered four official and 21 unofficial opinions relating to the public records law and 15 official and 39 unofficial opinions on possible violations of the open meetings law. Under the current attorney general (2002), official opinions are given only to city and town solicitors who request a ruling on an action of a local elected or appointed body. Unofficial opinions are those given to individual citizens, journalists and nongovernmental organizations. (See attorney general’s Web site at www.riag.state.ri.us)

According to the Access to Public Records Law, anyone can ask to look at or copy a public record. The public official who has custody or control of the records must comply with the request within 10 days or, if he or she denies the request, must indicate in writing the specific reasons for denial. The limit may be extended for a period not to exceed 30 days. The person seeking the record may then file a complaint with the attorney general, who, by law, must investigate and determine whether the complaint has merit. Usually a warning to the governmental body is sufficient, but the attorney general can ask the Superior Court for an injunction on behalf of the citizen who sought the record. The burden of proof is on the public body to prove that the records can be properly withheld from public inspection. The court can impose a fine not to exceed $1,000 on the offending public body or official and can order the public body to provide the records at no cost to the defendant. If the citizen’s case lacks legal merit, the court can award attorney’s fees and costs to the government body.

If an individual believes that a meeting of a public body has violated any portion of the Open Meetings Law, the person can file a complaint with the attorney general’s office. Such a complaint must be filed within 90 days from the date of public approval of the minutes of the meeting at which the alleged violation occurred or, in the case of an unannounced or improperly closed meeting, within 90 days of the public action of the public body revealing the alleged violation. If the attorney general refuses to take action, the citizen can file suit in Superior Court and if the public body is found in violation of the law the court may impose up to a $5,000 fine.

Sometimes the explanation for the violation is simple but nonetheless inexcusable: The official or officials failed to read the laws and were unaware that what they were doing could be illegal. Such was the case of the well-meaning retired businessman who volunteered to be chairman of a local government committee. When asked if he had read either of the laws, he admitted he had not, but he said he would before he unwittingly violated one of them.

In many other instances, it is obvious from reading the resulting opinion that the violation was a blatant disregard for the law. It is sometimes easier, officials will argue, to conduct business out of the public eye. It is faster and there are no interruptions from citizens who may want to question some of the public body’s decisions.

Why should a citizen who has tried to obtain records considered public under the law, or who has attended a meeting that is closed for no legal reason care enough to complain? Because, as many citizens and journalists believe, the right of access to government information is as important as the right to vote. Consider this: The government does not own the public records, and it has no right to keep you from public meetings. You own the records. You are the government.

What kinds of public records complaints did the attorney general’s office receive in 1999 and 2000? In 2000 the most common complaint — nine — that resulted in an unofficial opinion was that the government body failed to respond to a public records request within the 10-day period, and the town of North Smithfield and the Coventry Fire District violated the law by overcharging for requested documents. Other complaints focused on records that the attorney general, on investigation, found under law not to be public, such as autopsy photos.

Official opinions were rendered on questions about the public record status of the membership list of the Greenville Library (it is a public record so long as it does not include the materials requested by the library patron), and whether third party names in a police record are public (the opinion suggested a balancing test on the third party’s right to privacy versus the public’s interest in the information).

In 1999, unofficial opinions on access to public records resulted in six violations, including one after a request from the Newport Daily News for the number of teachers in town who had been granted provisional certificates. The request was refused. The attorney general ruled the information public since it was not identifiable to an individual.

The official opinion on public records that garnered the most controversy in 1999 gave approval to Narragansett police to redact names of victims on a case-by-case basis. Again the attorney general suggested a balancing test, weighing the victim’s right to privacy versus the public’s right to know.

In 2000, there were 29 complaints relating to the Open Meetings Law filed with the attorney general, and 13 of those unofficial rulings showed violations of the law. Several local government bodies failed to post notice of their meetings. The attorney general ordered them to reconsider matters from those meetings at a future, properly scheduled meeting. Other violations included failure of a school committee to post a public notice in a local newspaper at least 48 hours before the day of the meeting, and failure of a public body to maintain minutes of its meetings and to make them available to the public.

The six official rulings on matters relating to open meetings that year included one that said the Democratic City Committee in Cranston could convene a meeting of all nine of its members but only to discuss political strategy and not any city council business.

Of the 39 complaints filed relating to open meetings in 1999, eight cited failure of a public body to specify the nature of the business to be discussed in an executive or closed session, and eight complaints were against public bodies that failed to post a notice of a meeting in a timely manner. Two complaints said insufficient information in a posted meeting notice was provided on a topic to be discussed at the meeting; two cited failure of a public body to maintain proper minutes, and two called the public body to task for illegally voting in an executive or closed session.

Fifteen official opinions were handed down in 1999 relating to open meetings. The attorney general said it was legal for public bodies to hold “informational sessions” where a guest speaker answered questions, assuming that the members of the board do not “engage in collective discussion” about issues. In another opinion, he said that voting by secret ballot in an open session is “inconsistent with the intent and spirit of the law.”

Are these opinions of the attorney general binding? Is it imperative that the public officials adhere to them? They are only opinions, but conscientious officials and public bodies usually do pay attention to them, using the opinions as guideposts as they conduct the public’s business.

However, the laws will continue to be violated, either willfully or through simple negligence or even ignorance. It is then up to the media and members of the public to remain vigilant, to monitor the activities of the government, and, when needed, to file complaints about possible violations with the attorney general. The media’s special responsibility should be to make every effort to cover meetings of public bodies in their communities and report on their activities and their violations of the Open Meetings Law.

Citizens, too, have a special responsibility. They should familiarize themselves with the meetings and public records laws. They should attend meetings of the school committee and the town or city council. Later they can request copies of the minutes to monitor their accuracy. If they are denied a public record, they have an obligation to complain. It’s a citizen’s right. It’s a citizen’s responsibility to ensure that the activities of the government remain accessible to the public.

Perhaps Paul McMasters, First Amendment ombudsman for the Freedom Forum, gives the most succinct reason why the readers and the viewers should be concerned when an attempt is made, no matter how minor, to shut down the flow of public information. “For almost two centuries, the First Amendment has represented a promise Americans made to themselves, resolving to endure the most noxious speech in order to preserve that compact,” he says.

As important as public vigilance is, it is critical that public officials be familiar with the laws, that they understand the purpose of the laws and the various exemptions, such as when meetings legally may be closed and when they may not be, and which records are public under the law and which are not. Ignorance is no excuse for violating the laws.

Linda Lotridge Levin is a professor of journalism. and chair of the Department of Journalism at the University of Rhode Island. She is the author of Mass Communication Law in Rhode Island.