By Steven Brown | ACLU of Rhode Island
This should be a happy Access to Public Records Act story, but — spoiler alert — it’s not.
Valley Breeze reporter Ethan Shorey filed an APRA complaint with the Rhode Island Attorney General when the City of Pawtucket refused to provide him a list of vacant and abandoned properties it routinely shared with members of the City Council. Three weeks ago, the Attorney General’s office ruled that the document needed to be handed over. So why is this ruling a loss for open government instead of a victory?
This episode demonstrates the enormous difficulties that the public has in holding public bodies accountable for violations of APRA and the cramped way that the AG, the state official responsible for enforcing this law, can approach APRA complaints. The outcome is troubling for at least four reasons:
1. In rejecting Shorey’s request, the city claimed the document could be withheld based on an APRA exemption for documents that constitute “preliminary drafts” and “working papers.” The AG properly rejected that argument, and that should have been the end of the matter. But it wasn’t. Instead, the AG considered an additional argument that the city provided after the fact — that the list should be kept secret because any public interest in its disclosure was negligible and it would increase the likelihood of the properties becoming “targets for criminal acts” and attracting homeless persons, among other horribles.
However, in order to prevent public bodies from engaging in a bureaucratic version of whack-a-mole by raising new arguments for secrecy after old ones are rejected, APRA specifically provides that “except for good cause shown, any reason [for denying a record] not specifically set forth in the denial shall be deemed waived by the public body.” Yet the AG’s opinion completely ignored this provision, and didn’t even mention what the “good cause” was for allowing consideration of this new argument after the city’s only stated rationale to Shorey for withholding the document had been rejected.
2. The nature of this second argument is also cause for great concern for open government advocates. In making what he called a “close” decision on this claim, the AG concluded that the public interest in the document was more than “negligible,” but it did not rely on any particular exemption in APRA to weigh the public interest against, as there was none to cite. Instead, the AG engaged in an open-ended balancing test where even a record that is not specifically exempt under APRA still can be withheld if, on balance, somebody decides that generic privacy interests outweigh the public’s right to know. By using and routinizing this ad hoc approach, based on dicta from a Rhode Island Supreme Court decision, the AG’s analysis renders the 20-plus exemptions in APRA superfluous, as they mark merely the beginning, not the end of, confidentiality consideration under this approach.
3. Even though the AG concluded there was a public interest in release of the document, the ruling nonetheless held that the city could redact certain information from it, including the names of the property owners and the numerical addresses of the vacant houses – even though one of Shorey’s main points was that the city (and banks) routinely publicize the location of many of those houses. In other words, the AG held that the city could keep information secret that was publicly available elsewhere. It also remains extremely difficult to comprehend why the privacy interests of an owner of property that is on the City’s tax rolls and that may be causing city blight should outweigh the public’s interest in knowing who the owner is. No meaningful analysis was given in the ruling.
4. Finally, a look at the time frame is instructive. Shorey filed this complaint in September 2015. The AG issued its ruling last month, fifteen months later. Just as justice delayed is justice denied, dilatory responses to open records complaints undermine a major point of the law’s goal of open government. Pawtucket residents were denied access to public information for more than a year under a statute that generally requires records to be released within 10 days.
It is certainly a good thing that the Valley Breeze is finally getting this document, even in redacted form. But there are serious questions as to why the document should be redacted at all and why it took more than a year to obtain a ruling granting a news reporter access to it. There are even more fundamental concerns about a ruling that both further codifies a principle that vague standards of privacy, unmoored from any particular exemption in APRA, can outweigh the public’s right to know, and that ignores a safeguard against public bodies making up new excuses for withholding records when initial ones get shot down.
For open government supporters, the AG’s ruling should not, regrettably, be a cause for celebration. It should instead be taken as yet another call for strengthening APRA in order to better protect the public’s right to know.
Steven Brown is executive director of the ACLU of Rhode Island.
Above photo provided by Flickr user University of Michigan School of Natural Resources & Environment and used under a CC 2.o license.
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. Supporters of NEFAC for this year include: The Boston Globe, Boston University, The Hartford Courant and the John S. and James L. Knight Foundation.