This is the first of two articles addressing a recent audit of Rhode Island’s Access to Public Records Act. The second article can be read here.
By Linda Lotridge Levin
A recent audit of open government practices in Rhode Island has found that six municipalities and 10 out of 24 surveyed state and quasi-public agencies are seemingly in violation of the Access to Public Records Act (APRA) by failing to certify that they have any employees trained to grant or deny public record requests.
The findings are based on attorney general records and are part of a broader audit, to be released later this year, of state and local agency compliance with amendments to APRA that were approved in 2012. The audit was conducted by two organizations dedicated to transparency in government: ACCESS/RI, a coalition of local non-profit organizations and First Amendment advocates, and MuckRock, a collaborative news site and public records request platform.
The audit finding focuses on APRA’s requirement that “the chief administrator of each agency and each public body shall state in writing to the attorney general that all officers and employees who have the authority to grant or deny persons or entities access to records . . . have been provided orientation and training” on the requirements of the open record statute. Each person with that authority must submit to the attorney general a signed certification form confirming that they have been trained. Certifications must be submitted annually.
However, in six communities – Charlestown, East Greenwich, Johnston, Newport, Richmond and Warren – there is no attorney general’s record of any municipal employee being certified to respond to open records requests in either 2013 or 2014. The same is true for 10 of 24 state and quasi-public agencies that were selectively examined: the Airport Corporation, Board of Elections, Department of Administration, Department of Business Regulation, Department of Corrections, Department of Education, Department of Labor and Training, General Assembly, Office of the Auditor General, and the Rhode Island Housing and Mortgage Finance Corporation.
While seemingly technical in nature, the certification requirement serves important purposes. It ensures that public bodies have formally determined who within their agency has the responsibility for addressing APRA requests, and thus promotes public accountability, and it prevents situations where public bodies “lose” requests when they are shuffled to different individuals in the absence of a clear chain of command. Further, by guaranteeing that anyone given the responsibility of turning down a records request has received training about APRA, the requirement helps to eliminate “ignorance of the law” as an excuse by public bodies for failing to properly respond to an APRA request.
Partly as a result of this certification requirement, hundreds of state and municipal employees attend the attorney general’s annual open government summit, the major avenue for receiving the necessary APRA training that allows for an individual to be certified as APRA-compliant under the law.
Because Rhode Islanders must be assured that agencies are taking their obligations under APRA seriously, ACCESS/RI believes that the attorney general should make a public record of those public bodies that don’t comply with the certification requirement. Further, there should be a strong presumption that any public body without APRA-certified employees found to have committed an APRA violation should be deemed to have engaged in a knowing and willful violation of the law. Such a finding by the Superior Court is necessary for a fine of up to $2,000 to be imposed against the public body or agency.
The ACCESS/RI and MuckRock audit also found other problems with the certification procedure that will be addressed more fully in the broader report to be released later this year. For instance, some agencies listed in their online open records policies particular individuals who were responsible for complying with APRA but who have never been certified. In addition, some of the certifications that were provided to the attorney general by municipalities failed to clearly specify which agencies the designated individuals had jurisdiction over (e.g., whether a person certified as trained for the “town” handled records requests for every municipal agency, including the school and police department, or just requests for documents stored in town hall). ACCESS/RI believes the attorney general should require more specificity on the certification forms so it is clear what jurisdiction designated employees have over the various departments in their municipality.
Although hundreds of people attend every year, it is quite possible that the open government summit includes attendees from some agencies that do not have any certification listed with the attorney general’s office. This means there may be employees who have technically received the “training” required by law but who have not filled out the necessary form to confirm their compliance with the training requirement. This is troubling. If they have neglected that requirement, how confident can the public be about their implementation of the substantive provisions of APRA when dealing with formal requests for records?
Levin is president of ACCESS/RI and can be emailed at email@example.com.