Secrecy Remains R.I.’s Problem

Below is an op/ed co-written for The Providence Journal by Justin Silverman, executive director of the New England First Amendment Coalition; Linda Lotridge Levin, president of Access/RI; Steven Brown, executive director of the American Civil Liberties Union of Rhode Island; John Marion, executive director of Common Cause Rhode Island; and Jane W. Koster, president of the League of Women Voters of Rhode Island. The op/ed can also be read here.

We are writing to express our deep distress and frustration over the refusal of Rhode Island Attorney General Peter Kilmartin and State Police Superintendent Steven O’Donnell to release any documents related to their agencies’ four-year probe into the 38 Studios debacle. To put it simply, the disaster known as 38 Studios happened because of a deeply ingrained culture of secrecy in this state. The official state investigation into that disaster should not perpetuate that culture.

We urge them to reconsider their decision in order to promote the public’s right to know and provide the transparency that Rhode Islanders expect and deserve from this investigation. This need for transparency extends to both the investigatory records considered by the grand jury and the multitude of other records generated by their investigation that were not presented to the grand jury.

It strikes us as incredible that, after touting the depth of their investigation and their interviews with 146 witnesses, and after considering the broad coercive powers and other resources at their disposal, the state’s top two law enforcement agencies would justify denying the release of records on the grounds that private lawyers in a civil case might uncover significant information, prompting the re-initiation of a state criminal investigation that took four years to complete.

In both the Station Fire case and the case of the police shooting of Cornel Young Jr., there were civil actions pending when those grand jury records were released, yet the pending nature of those actions was not used as an excuse for keeping the records secret. We have little doubt that authorities would be prepared to reopen a closed case if new information brought to their attention warranted it. It’s not as if calling a case “closed” creates some legally enforceable mechanism that ties their hands.

It is also difficult for us to understand why the presence or absence of indictments from the grand jury should matter. True, there were indictments in the Station Fire case, but the grand jury did not indict every person who was implicated in the tragedy and whose culpability was considered. Nonetheless, the records were still released.

There is precedent for the release of grand jury records that did not involve the issuance of indictments. In 2000, the grand jury transcripts from the investigation of the Young shooting were released even though no indictments were handed up. But as with the 38 Studios investigation, there was an extremely significant public interest in the release of the investigatory records.

That leads us to the apparent decision to keep secret the records they gathered that were not presented to the grand jury. There is a wide range of independent information gathered by the state police and attorney general that would shed light on this important incident in Rhode Island history if these agencies publicly released the information — which, under the Access to Public Records Act, they have the clear right to do.

We recognize that many of these records probably fit within APRA exemptions that would allow for their non-disclosure, and there are undoubtedly some records that definitely should be withheld in order to protect legitimate privacy interests. But that is a far cry from deciding that all of the information should be withheld from taxpayers who rightfully believe they are entitled to know more about this financial catastrophe, and the four-year investigation of it, than what is contained in an eight-page news release. After all, APRA was designed to give agencies discretion to release information that might otherwise be kept secret.

Just last week at the attorney general’s annual open government summit, it was noted that the public’s right to access records that have some privacy component to them is at its apex when it involves “official information that sheds light on an agency’s performance of its statutory duties.”

Few incidents meet that definition more than the 38 Studios calamity.


NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here. Major Supporters of NEFAC for this year include: The Providence Journal Charitable Legacy Fund, The Robertson Foundation, The Boston Globe and Boston University.

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