AG Calls It ‘Myopic’ But Takes No Issue With Study Showing Weak Access Enforcement

By Steven Brown

PROVIDENCE — He considered it “myopic” and “one sided,” but Rhode Island Attorney General Peter Kilmartin apparently couldn’t take issue with any of our facts analyzing that state office’s record (.pdf) in enforcing the Access to Public Records Act (APRA).

That law gives the AG the power to investigate open records law violations and to take legal action against violators. However, a report (.pdf) we recently issued found that between 1999 and June 2012, he and the state’s two previous Attorneys General filed APRA lawsuits against public bodies on only six occasions, less than 4% of the time after they had determined that a violation of the law had been committed.

Even the most blatant violations of the statute rarely led to legal action. For example, on six separate occasions in the space of two years, the AG ruled that the Town of North Providence had violated APRA. Yet even after the sixth violation, he refused to find that the Town had engaged in a “knowing and willful” violation that warranted seeking penalties under the law.

Our report also disclosed that most APRA violations were blatant ones. They involved public bodies ignoring basic statutory obligations, such as failing to respond to requests within the required time period, neglecting to notify requesters of their appeal rights, or charging unreasonable fees for the inspection and copying of records. They did not involve arcane questions of statutory interpretation that might warrant leniency.

Amendments to APRA enacted last year make it easier to hold public bodies accountable for violating the law. They lowered the standard of proof necessary to prove violations, and increased the fines that can be imposed. In order to promote respect for, and compliance with, APRA, it is essential that the AG become much more aggressive in pursuing penalties against public bodies that engage in clear violations of the law.

It is insufficient to routinely issue findings of wrongdoing and do nothing else when the violations should never have occurred in the first place. A more vigorous response is necessary in order to help reverse a culture of secrecy that seems to pervade too many government agencies. The public’s right to know demands nothing less.

Steven Brown is executive director of the Rhode Island ACLU.

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