ACLU Asks State Supreme Court to Address Key Open Records Issues in Google Settlement Fund Case

January 22, 2019 2:15 pm

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Calling the controversy “one of the most significant challenges to the public’s right to know under the state’s Access to Public Records Act” since its enactment, the ACLU of Rhode Island today filed an appeal to the R.I. Supreme Court on behalf of former House Minority Leader and Gubernatorial candidate Patricia Morgan, whose access to documents pertaining to the Attorney General’s expenditure of more than $50M in funds from the “Google settlement” has been stymied by hundreds of questionable redactions.

The Attorney General has used this case, which Morgan filed pro se last year, to argue that any government document constituting a memorandum is exempt from disclosure under APRA. The AG has cited a provision in APRA that allows for the non-disclosure of “preliminary drafts, notes, impressions, memoranda, working papers, and work product.” In a “friend of the court” brief filed last October in Superior Court, the ACLU had argued that the cited exemption was clearly designed to address unfinished business documents, since every other type of record cited in it – drafts, notes, impressions, and working papers – follows from the initial key word “preliminary,” and contains an element of incompleteness or tentativeness.

But, without explaining its reasoning, the Superior Court upheld the AG’s actions, including the complete black-out of a memo dealing with the purchase – using Google settlement funds – of “lapel pins and challenge coins” for the AG’s staff. The state’s new Attorney General, Peter Neronha, has reaffirmed the agency’s position that all government memoranda are exempt from disclosure to the public, stating only that his office would exercise its discretion and “evaluate the nature and substance of the document when deciding whether it should be released.”

The ACLU’s appeal will also be challenging the AG’s redaction of all purchase order and invoice numbers for alleged security reasons, even though the state Department of Administration always requests, and sometimes requires, those numbers in order to retrieve bids and contracts for the public.

ACLU of RI executive director Steven Brown said today: “The Attorney General’s position represents one of the most significant challenges to the public’s right to know under the state’s Access to Public Records Act since its enactment. To the best of our knowledge, until this case, no government agency had ever interpreted this APRA exemption in the extraordinary way the Attorney General has done. Government business is routinely conducted via memoranda. The AG’s position that every memorandum generated by state and municipal agencies can be kept secret unless the agency, out of pure largesse, agrees to release it is a direct assault on transparency in, and the very concept of, open government. We are hopeful this appeal will lead to an overturning of this appalling position.”

Linda Lotridge Levin, president of ACCESS/RI, a coalition of non-profit organizations working to keep government open to its citizens, added: “Holding state and municipal agencies accountable for their use of taxpayer money is fundamental. It is especially important that the office of the state’s attorney general be transparent because it is the legal caretaker of public records under the Access to Public Records Act.”

Morgan paid $3,700 to obtain a first set of documents in response to her APRA request, but Superior Court Judge Melissa Long agreed to waive over $4,000 in fees that the AG was set to charge for a second batch of records. At the same time, however, the judge denied Morgan’s request to have documents, such as the “lapel pin” memorandum, released to her in unredacted form.

For years, open government groups have complained that although the Office of the Attorney General is the agency responsible for overseeing and enforcing APRA, it has more often been a hindrance than a help to open records requesters, and has repeatedly undermined APRA through its actions and advisory opinions.

The notice of appeal was filed today by ACLU cooperating attorney Lynette Labinger.

A court brief that the ACLU filed in the case in Superior Court, a blog post, and an ACLU analysis with more background on the issue can be found here.

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