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Rhode Island ACLU highlights exemption in access to public records

R.I. Supreme Court not expected to hear case, Morgan v. Kilmartin, for months

The American Civil Liberties Union of Rhode Island has challenged the state’s Supreme Court to overturn a lower court ruling that upheld an exemption allowing the state  to withhold certain government documents from the public.

The R.I. ACLU filed the appeal for a reinterpretation of the state’s Access to Public Records Act on behalf of former House Minority Leader Patricia Morgan Jan. 22. The case comes almost a year after Morgan filed an APRA request for documents pertaining to the state’s recent settlement with Google in an attempt to find how former Attorney General Peter Kilmartin spent the $59 million his office received from the case.

In response to her request, Morgan received documents with “hundreds of redactions,” according to the R.I. ACLU. The redactions highlighted a provision in the APRA that exempts from public status “preliminary drafts, notes, impressions, memoranda, working papers and work products.” 

Now, the R.I. ACLU is disputing the Attorney General’s interpretation of the scope of documents exempted from disclosure by the APRA.

“We believe that the Attorney General’s interpretation of the law has no basis,” R.I. ACLU Executive Director Steven Brown told The Herald, calling it“overreaching and an interpretation that we’ve never heard anybody else raise in 40 years since APRA was adopted.”

Brown is particularly concerned with the provision’s inclusion of the memoranda category. Since “government business is routinely conducted via memoranda,” exempting all memoranda from release is “a direct assault on transparency in, and the very concept of, open government,” stated R.I. ACLU’s press release about the complaint.

Newly elected Attorney General Peter Neronha initially took the same position as his predecessor —  the APRA permits memoranda redactions. But recently,  Neronha’s office called the R.I. ACLU and “said that they are reviewing all the documents that (the Attorney General’s office has) provided in order to determine whether additional information should be disclosed” pertaining to the Morgan case, Brown said.

“This administration does not take the position that memoranda, simply because they are memoranda, may be withheld from disclosure under APRA,” said a spokeswoman for Neronha, according to the Providence Journal.

The conversation surrounding public access to records in the state comes as a similar case arises at the federal level.

On Dec. 28, less than a week into the recent partial government shutdown, the Department of Interior filed a proposed rule that would limit public access to the Department’s records. Proponents of the rule argue that it would “ensure more equitable and regular access to federal records for all requesters,” while those in opposition are concerned that it would allow for “unlimited discretion to deny FOIA requests,” CNN reported.

Senior Fellow in International and Public Affairs Timothy Edgar articulated the importance of transparency at all levels of government.

“There’s an effort in some parts of the Rhode Island state government to keep the public out, and that’s a mistake,” Edgar told The Herald. “It may help in the short term … but it’s going to come out, and you’re better off … exposing yourself to that kind of scrutiny because then it’s a way of catching mistakes.”

The DOI closed public comment on the rule Jan. 29. Next steps include further agency consideration before the DOI can make the proposed rule final, according to the Office of the Federal Register.

Meanwhile, the R.I. Supreme Court is not expected to hear Morgan v. Kilmartin for months, according to Brown.

Linda Lotridge Levin, professor emerita of journalism at the University of Rhode Island and president of ACCESS RI, urged students to take an active approach to support freedom of information.

“Some years ago one of my journalism classes at URI and a poli sci class at Brown worked together to conduct an audit of government agencies in all 39 cities and towns in Rhode Island” Levin wrote in an email to The Herald “We found multiple violations of APRA.”

Brown expressed similar sentiments, saying that concerned students can contact their state representatives and senators to let them know of their interest in seeing the open records law, “not only enforced properly but strengthened.”


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