From the editor’s desk: The gaping hole in Rhode Island’s public records law

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Rhode Island’s Access to Public Records Act aims to protect citizen’s right to inspect and/or copy documents held by public bodies. Considered a cornerstone of American democracy, access is believed to be an essential means to elect and monitor public officials, evaluate government operations, and protect against secret government activities.

The law provides timetables for when records must be provided, guidance on which records are deemed public, and instructions for how to request access.

A critical tool for fighting corruption, the law exists under the clear assumption that there are times when members of a public body might find it preferable not to comply with requests.

Say, for instance, a fire district – a public body tasked with the efficient spending of taxpayer dollars on the essential service of fire containment and emergency medical care – were to receive several high-level resignations in a short time frame, with employees filing scathing resignation letters explaining their decision to leave the job.

Say the loss of the more experienced staff had potential to weaken those publicly-funded emergency services, and that they were the result a toxic climate, unprofessionalism, misuse of resources, or lack of leadership, according to those who jumped ship.

In other words, imagine that public inspection of these particular letters had the potential to paint those in charge in a less than flattering light.

Obtaining and publishing those whistleblower resignations could be revealing for taxpayers. It could inspire voters to take a closer look at how their fire tax dollars were being spent, and maybe even hold the governing board accountable.

And so, district officials put them in the trash bin.

This was the situation NRI NOW encountered this month while attempting to obtain a record from the Oakland Mapleville Fire District.

“The district does not keep records of resignation,” wrote the records clerk days later in response to the APRA request submitted August 19.

I, perhaps naively, found the answer unacceptable. Surely, I thought, the state must govern which records must be kept on file.

A search for the information led to the Rhode Island Secretary of State’s website, and indeed, turned up a retention schedule stating that personnel files must be maintained for five years after separation. The document that I had requested was from March.

NRI NOW contacted the state Attorney General’s office to see if, “we don’t keep them,” was considered a valid reason not to provide a public document.

“The APRA applies to records maintained by a public body,” noted the response from Special Assistant Attorney General Katherine Connolly Sadeck. “This office has previously found that a public body does not violate the APRA by not producing a record it does not maintain.”

“If you allege that a records retention policy was not complied with, you may wish to contact the Secretary of State, which I believe handles matters related to records retention policies,” the note concluded.

A call to the Secretary of State’s office was directed to the State Archives division. State Archives sent me back to the Attorney General’s office. And the circle continued.

It seems that no one takes complaints in Rhode Island regarding records that have not been maintained – even though the law states that the public body is required to keep them.

Perhaps I’m too optimistic, but I was incredulous, repeating my question several times to several different offices. I thought, if no one forces government bodies to maintain proper record-keeping systems, what’s to stop those with something to hide from throwing all of their unfavorable documents into a bonfire? What I found most baffling was that everyone I spoke to seemed unfamiliar with the issue – as though it just hadn’t come up.

My final call was to the Rhode Island ACLU.

“We’ve raised the same issue,” said Executive Director Steven Brown. “It’s very troubling. We’ve asked before to plug this loophole.”

Brown said his organization has taken issue in the past when a government body simply destroyed public records they were seeking.

Fortunately, some lawmakers have also taken notice of the issue.

House bill 5998, introduced by Rep. Jose Batista, aims to update the statutes that govern the Rhode Island State Archives & Public Records Administration. Secretary of State Nellie Gorbea testified on behalf of the legislation in March.

“Specifically, the bill would modernize the proper management, retention, care, and disposal of public records,” noted a release from Gorbea’s office following the hearing. “These processes are essential to ensuring that public records are accessible when requested.”

“It is vital that we modernize our systems so that Rhode Islanders can hold their government accountable,” said Gorbea, noting that the law hasn’t been updated since the 1980s.

Under the bill, entities that illegally dispose of records could be brought to court.

The legislation was referred to the House State Government & Elections Committee and held for further study in March.

I humbly submit that the legislation must be expedited.

Because this gaping hole in the state’s public records law has implications that extend far beyond the question of local fire operations and the exodus of senior staff.

It speaks to accountability, and our expectation in the state of responsible governance.

And I believe Rhode Islanders deserve a better answer from their public officials than, “Sorry, we threw that out.”

Sandy Seoane

Publisher & Founder, Northern Rhode Island News On the Web

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