Between 1999 and June 2012, the Attorney General’s office filed lawsuits against public bodies for violating the state’s Access to Public Records Act (APRA) on only six occasions, less than 4% of the time after finding that violations of the law had been committed. That is one of the findings of a report issued today by the ACLU of Rhode Island, which examines past enforcement of the open records law by the AG’s office and urges stronger enforcement in the future.
In June 2012, the General Assembly enacted comprehensive amendments to APRA, and expanded the circumstances for imposing penalties against public bodies that violate the Act. This prompted the ACLU to examine how APRA had been enforced by the Attorney General’s office, the state agency explicitly given enforcement powers under APRA, prior to those amendments.
In addition to the lack of litigation by that office to address violations, we found other discouraging patterns. Among them:
Violations of uncomplicated aspects of the law — such as responding to an open records request within the required time period, notifying requesters of their appeal rights, and not charging unreasonable fees for the inspection and copying of records — occurred repeatedly.
Even the most blatant violations of the statute rarely led to legal action by the Attorney General. In one recent instance, the same public body – the Town of North Providence – was found to have violated APRA six separate times within a two-year period, yet even after the sixth violation, the Attorney General refused to find that the Town had engaged in a “knowing and willful” violation that warranted seeking penalties under the law.
It should be noted that the AG’s failure to pursue vigorous APRA enforcement occurred regardless of who had been in office during the time period studied. And it must be acknowledged that until the 2012 amendments were adopted, the Attorney General faced a high standard – a finding of a “knowing and willful” violation of the law – in order to obtain financial penalties against a public body. But since so many of the violations have been so clear, even this standard should have led to a much stronger track record in pursuing legal action and thereby helping to deter future violations by public bodies.
Under last year’s amendments to the law, a public body can now be subject to financial penalties for “reckless” violations of the law as well as “knowing and willful” ones, which means the complainant need no longer prove that the violation was done with deliberate knowledge of its illegality. In order to promote respect for, and compliance with, the law, it is essential that the AG make use of the statute’s strengthened penalty provisions to seek fines against public bodies that engage in clear violations of APRA’s requirements. It is insufficient to issue findings of APRA violations with no further repercussions when the violations should never have occurred in the first place. A more vigorous response is necessary in order to help reverse a culture of secrecy that seems to pervade too many government agencies.
If little changes, however, the General Assembly should further strengthen the penalty sections of the law by significantly increasing the fines that can be imposed to encourage enforcement by private parties. The General Assembly should also consider whether another state agency should be tasked with the responsibility of enforcing the statute if the AG’s office does not increase its pursuit of violations against recalcitrant agencies. The public’s right to know demands nothing less.