Many states don’t use their attorney general to enforce state public records laws, according to a spreadsheet created by the New England First Amendment Coalition. While 20 states, including Rhode Island, rely on the attorney general, the majority do not.
AccessRI is a consortium of the ACLU, Common Cause, the Rhode Island Press Association, the League of Women Voters and NEFAC that advocates for open, transparent government. The Access to Public Records Act establishes rules for accessing state and local government documents in Rhode Island. The APRA law establishes an appeals process through the Attorney General’s office, a relationship many good government groups find problematic.
AccessRI board member John Marion, also the executive director of Common Cause RI, said AccessRI will discuss best practices at a meeting next week. By next legislative session, he said, the group hopes “to propose moving enforcement of APRA and OMA (Open Meetings Act) to a different place in state government.” Early ideas include the secretary of state’s office or creating a new, independent commission.
Currently, Rhode Island and 19 other states use the attorney general to ensure public agencies comply with public records laws, according to the NEFAC spreadsheet. Marion and other ACCESS RI board members say this relationship can be inherently problematic because attorneys general work closely with law enforcement.
“The discussion has been going on for years and we’ve all come to the conclusion that there is a fundamental conflict,” Marion said. “So many APRA cases are police issues and the attorney general is also the chief law enforcement officer.” While current Attorney General Peter Kilmartin is a former police officer, Marion noted, “this is not about the current occupant of the Attorney General’s office but about the office itself.”
At a recent, somewhat unrelated, news conference, ACLU of RI Executive Director and AccessRI board member Steve Brown said, “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.” Linda Lotridge Levin, of the Rhode Island Press Association and an AccessRI board member said at the news conference, “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.”
For these reasons, AccessRI will study how other states and the District of Colombia handle public records law enforcement.
Some states – California, Colorado, Louisiana, Oklahoma, South Carolina, West Virginia, and Wyoming – have “no agency enforcement” and instead rely on “judicial review,” according to the NEFAC document.
Massachusetts and New York use their secretary of state offices. AccessRI will likely study this model closely, even though Rhode Island Secretary of State Nellie Gorbea doesn’t think it would solve any problems. She recently told Rhode Island Public Radio, “anywhere you place it in government, somebody is going to have a conflict of interest.” Marion countered, citing that interview, “Preferably it would be some place where the conflict would be minimized.”
Connecticut has a Freedom on Information Commission, another idea that appeals to AccessRI board members. Similarly, Virginia has a Freedom of Information Advisory Council.
“If costs were of no concern then an independent commission is probably the best approach,” Marion said, noting this would also likely be the most expensive option.
Other states have come up with a variety of different solutions, according to the spreadsheet. Alaska and Arizona each have an Office of Ombudsman to field public records requests. Maryland uses the Office of the Public Access Ombudsman or its Public Information Access Board. Pennsylvania and Tennessee each have an Office of Open Records. Hawaii has an Office of Information Practices. Indiana has an Office of the Public Access Counselor. Iowa has a Public Information Board. Minnesota uses its commissioner of administration and Mississippi uses its Ethics Commission. Nevada has a State Records manager and Utah has a State Records Committee. New Jersey has a Government Records Council and Wisconsin has an Office of Open Government.
“We can’t continue to complain that it’s a problem without offering some potential solutions,” Marion said.
Attorney General Peter Kilmartin’s office could not be immediately reached to comment for this post.