After a discussion with Rep. McEntee after my previous post (and I applaud her for taking the time to discuss this Bill further), I retract my initial concern with H5098 but call to attention a parallel issue – the section of the language that I view as troubling in this bill is actually already codified into Chapter 38-2-2 4K of our state statutes. It currently reads: “(K) Preliminary drafts, notes, impressions, memoranda, working papers, and work products; provided, however, any documents submitted at a public meeting of a public body shall be deemed public.”
This statute was a piece of our existing law that Rep. McEntee was laudably trying to strengthen for the purposes of protecting climate scientists and researchers from excessive open records requests as a tactic to delay or stall said research. While I’m still not convinced that this bill achieves this goal with clarity, I support it’s intent wholeheartedly. This section of the existing public records statute is written incredibly broadly and the terms of “preliminary drafts”, “notes”, “impressions”, “memoranda”, “working papers”, and “work products” are left without definitions, and it is this wording that I strongly take issue with. While this bill is being discussed and the language of Chapter 38-2-2 4.K is being updated, it was my hope that the RI House Judiciary committee would have taken the time to discuss strengthening the surrounding text or defining the terms as well.
For a state with such a vibrant history of creative corruption and scandal, it is important that our public records laws are clear and, whenever there is gray area, that we err on the side of public transparency. Could a “preliminary draft”, “note”, or “impression” as noted in the current text of the statute cover a set of emails between employees of one of our state agencies that would otherwise be deemed a public Record in the spirit of the law? Might a “memoranda” be a directive given by an agency head to state employees? It doesn’t take too much imagination to see how this section of language may be misconstrued to conceal information that should otherwise be considered a public Record.
In fact, in the testimony provided at the RI House Judiciary committee meeting, Aaron Ley, of the URI Association of University Professors, couldn’t clearly answer if professors’ emails would be protected under this bill. Ley, did put forward a solid rationale for why H5098 is both important and necessary to protect researchers at our public institutions, but the scope of discussion barely extended into the realm of what information would actually be protected under this bill. Sadly, with or without this bill, the existing text of our laws cover all state agencies, not just our public institutes of higher learning, so if we aren’t sure if this protects particular categories of information for professors, it grows less clear in the application of the law towards other state agencies that have a cloudier history of complying with ARPA and related public records/government transparency rules.
I believe that Rep. McEntee is taking the proper and important steps to protect our public colleges and universities’ research capabilities but in doing so has put to display the potential failings of the current language of Chapter 38-2-2 4.K. I hope that our honorable Representatives will consider updating this text to ensure public Records laws are clear and enforceable.