Given the news conference announced a lawsuit against the Pawtucket Police alleging it failed to comply with Rhode Island’s public records law, the topic naturally turned to Attorney General Peter Kilmartin. He’s a former Pawtucket police officer that, as AG, is tasked with enforcing the state Access to Public Records Act.
And given that it was an ACLU news conference, naturally it was not to offer praise for the cop-turned legislator-turned state’s top law enforcement officer. Among civil libertarians and transparency activists, Kilmartin has a particularly poor reputation with regard to enforcing the public records law.
“Unfortunately, the state’s attorney general seems disinclined to ensure that records of police activity are made available to the public,” said Linda Lotridge Levin, representing the Rhode Island Press Association, in her opening statements. “As the people’s lawyer, the attorney general should and must fight to protect the rights of the people to have access to records that by law or by court decisions are deemed open to the public. To fail in that duty is failing as the people’s lawyer.”
Going off script after reading from her prepared statement, she added, “That last statement really I think is an important one. This is a continuing problem – not just that communities will not release public records but when they don’t the Attorney General’s office, particularly in the realm of police work, tends to side with the public officials, not the public.”
Steven Brown, executive director of the Rhode Island American Civil Liberties Union of Rhode Island, echoed the critique.
“The ACLU and ACCESS Rhode Island have raised numerous concerns over the years with the role of the Attorney General’s office in enforcing the Access to Public Records Act,” he said when asked if he shared Lotridge Levin’s feelings about Kilmartin. “We do believe that there really is not sufficient and adequate enforcement by the Attorney General’s office, particularly when it comes to police matters,” he said.
Lotridge Levin collected data on municipal compliance with the state APRA law in 1998 and 2014. “Both audits found police departments, in particular, not in compliance with the law,” she said.
Brown said, “Even though the audit reports that Linda mentioned show that police departments were among the worst violators in the state among public bodies when it came to compliance with the open records law there had not been as of a year ago a lawsuit ever filed by the Attorney General against a police department for violating APRA.”
He added, “It’s very disappointing when the agency that is supposed to be carrying the flag for open records seems to go out of its way sometimes to encourage police departments and others to hide records.”
In reference to the criticism, the Attorney General’s office released the below statement to reporters, and declined to comment further.
Because the subject matter of this lawsuit is currently in litigation in which the Office is not a party to, and in which the subject matter was not reviewed by this Office, we cannot comment on the specific allegations therein.
With respect to the editorial comments made at the press conference, the ACLU ignores the long history that Attorney General Kilmartin has dedicated to transparency and open government. Just last month, we hosted our 19th annual open government summit, at which more than 500 people attended.
The Attorney General also makes the summit presentation and materials available for viewing online year-round for those who could not attend or need a refresher. Further, it was through his advocacy and leadership in 2012 that the General Assembly passed sweeping updates to the Access to Public Records Act, increasing transparency and making documents available to the public that previously were exempt. And, the Office has filed more open government lawsuits against public bodies during this Administration than during the previous 12 years combined.
As we teach in the Open Government Summit, city and towns evaluate APRA requests internally with their own legal counsel and make decisions as to what documents are made public. The Attorney General’s Office has no role in that part of the process. If an individual disagrees with a decision by a public body, they may file a complaint with this office or with the Superior Court. When the Office does issue an open government finding, our decisions are based solely on the facts presented and law without regard to the individuals or entities involved.
The ACLU once again is mixing a heavy dose of innuendo with the law in an attempt to reach a self-serving political outcome. While we can hope to have a healthy and respectful debate about the requirements of the APRA with the ACLU and others, as the Supreme Court’s decision last year in Providence Journal v. Rhode Island State Police demonstrates, the ACLU’s interpretation of the law is not always correct.
Lotridge Levin said ACCESS Rhode Island‘s “main focus” for next year will be “trying to figure out how to get the Access to Public Records out of the Attorney General’s office.” Connecticut has a Freedom of Information Commission that handles public records and Massachusetts handles public records enforcement through its Secretary of State’s office.
She said Kilmartin isn’t the first Rhode Island attorney general to be soft on transparency. “We found that the Attorney General, whoever it is, that office has been very reluctant to go out and prosecute anybody in the public realm who has violated the Access to Public Records Law and they tend to more apt to not go after the police,” she said.
The lawsuit filed yesterday, Lyssikatos v. Pawtucket, contends Pawtucket partially complied with a public records request in 2014. Upon request for complaints of police misconduct, Pawtucket Police produced only documents related to citizen complaints against the police, not internal complaints. The request was made by Dimitri Lyssikatos, of the Rhode Island Accountability Project, and was made to assess Pawtucket’s compliance with the APRA law.
“Lyssikatos, on behalf of RIAP, submitted an APRA request in February 2017 to the Pawtucket Police Department for the past two years of internally generated reports investigated by the Department’s IAD that were not the result of citizen complaints,” according to the ACLU. “In April, he received a response denying the request on the grounds that the records, even if redacted to protect the identities of the police officers and other individuals involved, were ‘personal individually-identifiable records,’ and that they would shed no light on ‘official acts and workings of government.’ The denial further claimed that disclosure of the records would serve a ‘negligible’ public interest.”
ACLU volunteer attorney R. Kelly Sheridan said there is no “basis in law” for Pawtucket to deny internal complaints against police officers.
“We contend there is no principled distinction between a complaint of police misconduct whether it was generated by a citizen complaint or internally within the department,” he said. “There’s no support in the statute … and there is no support in either Supreme Court decision to support that distinction, and finally the distinction justifies common sense.”
The Pawtucket Police relied in part on a 2017 ruling by Kilmartin’s office to deny Lyssikatos’ records request.