“Open Government”

March 20, 2015

ACLU, Phil Eil sue DEA for public records requested 3 years ago

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The ACLU of Rhode Island filed a Freedom of Information Act (FOIA) lawsuit Wednesday on behalf of local journalist, Philip Eil, who has been stymied for more than three years in his effort to obtain access to thousands of pages of public evidence from a major prescription drug-dealing trial.

The lawsuit, against the Drug Enforcement Administration (DEA), seeks a court order to release the documents, a declaration that the DEA has wrongfully withheld and redacted documents, and an award of attorney fees. Filing the suit were ACLU volunteer attorneys Neal McNamara and Jessica Jewell, from the law firm of Nixon Peabody.

The request in question involves the evidence used to convict Dr. Paul Volkman, whom the Department of Justice has called the “largest physician dispenser of oxycodone in the United States from 2003 to 2005.” Volkman was indicted on 22 drug trafficking-related counts in 2007, and, in 2011, after an eight-week federal court trial in Ohio that included 70 witnesses and more than 220 exhibits, he was convicted of, among other charges, prescribing medications that caused the overdose deaths of four patients. In 2012, Volkman was sentenced to four consecutive life terms in federal prison — one of the lengthiest criminal sentences for a physician in U.S. history.

Volkman attended college and medical school with Eil’s father, and, in 2009, Eil began conducting research and reporting for a book about the case. After Volkman’s trial ended, Eil requested access to the trial evidence from the clerk of the U.S. District Court in Cincinnati. This request was denied, as were Eil’s subsequent requests to the Ohio U.S. Attorney’s office, the U.S. District Court judge who presided over the case, and the clerk of the 6th Circuit U.S. Court of Appeals.

On February 1, 2012, Eil filed a FOIA request with the Executive Office of U.S. Attorneys, which eventually transferred the request to the DEA nine months later. The DEA still has not completely fulfilled the request, despite numerous efforts by Eil to expedite a response. Pending with the DEA for more than 800 days, Eil’s request is eight months older than what the federal government-operated website, FOIA.gov, reports as the agency’s longest pending request.

One of the 133 slides released to Mr. Eil. The substance of nearly every slide was redacted.

In addition to the time it has taken to process the request, the DEA has withheld 87 percent of the 12,724 pages it has thus far processed for Eil’s FOIA request, and stripped most of the substantive information from the remaining 1,600 pages it has “released.” For example, as the lawsuit notes, one of the nine installments of releases to Eil included “a 133-page slide show where the substance from nearly every single slide is redacted.” In another one of the “partial releases” of information, the DEA withheld 1,225 of 1,232 pages it processed.

“You can’t have a true democracy without a transparent court system, and this case represents an egregious failure of judicial transparency,” Eil said. “The right to a public trial is a basic tenet of our society, and it’s scary to think that any trial in the United States, especially one of this magnitude, would be retroactively sealed off from public view, as this case has.”

All too often at both the state and federal level, agencies address the public’s right to know as they would an exceedingly unpleasant chore – reluctantly, with some disdain, and with little care for the finished product – instead of as the fundamental and essential engine of democracy that it is. Mr. Eil’s efforts and this lawsuit are a reminder of the importance of persistence in holding government agencies accountable to the public.

Eil is an award-winning freelance journalist who, most recently, was news editor and staff writer of the Providence Phoenix until the paper’s closing in 2014. He has taught classes on writing and journalism at the Rhode Island School of Design, where he will return as an adjunct lecturer in September. He has conducted more than 100 interviews, across 19 states, for his book about the Volkman case.

The DEA’s actions in Eil’s case follow a disturbing pattern of FOIA-related behavior from the agency in recent years. In 2012, reason.com reported that DEA FOIA rejections had increased 114 percent since 2008, and earlier this year, the agency told a FOIA requester it would cost $1.4 million to process his request.

The lawsuit was filed in the middle of Sunshine Week, a week designated to educate the public about the importance of open government.

August 29, 2014August 29, 2014

Open gov’t groups blast Kilmartin on public records law

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Calling it “a new low” in the state’s enforcement of the Access to Public Records Act (APRA), five open government groups blasted an opinion issued by the Attorney General’s office which held that public bodies can charge members of the public for the time it takes to compose a letter denying an open records request.

That interpretation of the law was embodied in an AG advisory opinion, Clark v. Department of Public Safety, issued yesterday. It arose in the context of a Rhode Islander who had sought BCI and personnel records for an individual in the State Fire Marshal’s office. When the requester was denied access to the records on the grounds that they were confidential by law, he was charged a $15 fee. He then filed an appeal with the AG, leading to yesterday’s opinion. (The complaint raised a number of other APRA objections, which were also rejected in the opinion.)

APRA allows public bodies to charge for the “search and retrieval” of public records. The opinion appears to argue that because the time spent redacting records has been held to constitute “search and retrieval” time, then the time spent composing a letter to deny access can be charged as well. The portion of the opinion addressing this issue is on Pages 6 and 7.

Below are quotes denouncing the decision from representatives of Common Cause RI, ACCESS/RI, the ACLU of Rhode Island, the League of Women Voters of Rhode Island, and the New England First Amendment Coalition.

Rosanna Cavanagh, executive director of the New England First Amendment Coalition:

“The legislative intent of the statute is thwarted by the Attorney General’s new interpretation which in effect replaces the clear meaning of ‘search and retrieval’ with the opposite meaning of ‘search and denial.’ If this interpretation takes hold it would make Rhode Island the least access friendly state in New England in this regard.”

John Marion, executive director, Common Cause Rhode Island:

“By upholding the DPS’s decision to charge a citizen the costs associated with composing a letter denying their request, the Attorney General’s office has provided a blueprint for government officials to discourage public records requests.”

League of Women Voters of Rhode Island President Jane Koster:

“Too many public bodies already treat the open records statute like a series of recommended guidelines instead of a law that must be followed. This opinion only exacerbates the many problems the public already has gaining access to information.”

Linda Levin, chair of the open government group ACCESS/RI:

“We call on the Attorney General to reverse this position in future decisions. If the office does not, ACCESS/RI stands ready to seek legislation that would establish into law that the public cannot be charged in any way when records are denied.”

Here’s my statement, as the executive director of the ACLU of Rhode Island:

“Allowing agencies to charge people for the privilege of having their request for records denied makes no sense, has no basis in the statute, and represents a new low in interpreting the open records law. It adds insult to injury, and is like sending a ‘Dear John’ letter postage due.”

February 27, 2013February 28, 2013

The Eternal Struggle: House Rules

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As it turns out, what most would think is the most mundane of duties of the R.I. House of Representatives – setting their own rules – is a fascinating exercise in recognizing who holds power, and those who seek to break the existing power structure and/or make that power structure more accountable and transparent.

For those who don’t know, any public bill submitted to R.I. House invariably moves to a committee. While the bill is in committee, committee members review the bills and offer what are called SUB A’s, in legislative parlance. These SUB A’s usually involve minor changes in language, or the striking and/or replacement of text. Once the bill is amended, the committee votes to move the bill to the floor of the House. When the bill reaches the floor, members can offer what they call floor amendments. These amendments, which also usually involve minor changes in language, or the striking and/or replacement of text, are subject to a straight up or down vote as to whether to be included in the bill.

At first glance, the House Rules bill submitted to the floor by Deputy Majority leaders Arthur Corvese and Samuel Azzinaro seems like pretty standard legislation. After all, they are just setting the rules by which they are governed, right? Again, a pretty straightforward bill, including language that would dictate that no bill should be brought before the House after 10:30 p.m. on any given legislative day, unless the Majority leader and Minority leader agree, or a majority of the members vote, to suspend the rule.

The real drama, and struggle to hold at bay those who hold nearly unchecked power in Rhode Island, comes when the members of the Minority (Republicans) seek to add floor amendments to the bill.

According to the existing rules of the House, a bill that is submitted is subject to 5 possible votes by the members.

A motion to report the bill or resolution to the House with a recommendation of passage
A motion to report the bill or resolution as amended, or in substitute form, to the House with a recommendation of passage
A motion to report the bill or resolution to the House without recommendation
A motion to report the bill or resolution to the House with a recommendation of no passage
A motion to report the bill or resolution to the House with a recommendation that it be held for further study

On February 26th, 5 floor amendments to the Majority sponsored House rules bill were proposed by the House Minority.

One by Representative Spencer Dickinson, which was withdrawn immediately after introduction.

One by Minority Leader Brian Newberry, which would have disallowed the House to vote to hold bills introduced on the floor for further study, instead making the members hold an up-or-down vote on any bill currently on the floor.

A compromise amendment by Rep. Doreen Costa, which would have set the cutoff for new bills introduced to the floor at 11:00 p.m., splitting the difference between the original 11:30 cutoff and the proposed 10:30 cutoff.

Two amendments submitted by Rep. J. Patrick O’Neill, one to eliminate the suspension of any rule by agreement of the Majority and Minority leaders, and requiring a two-thirds majority vote to suspend, and one to publish electronically( i.e. on the web) any bill in it’s exact form to be voted on at least 24 hours before the vote.

Minority leader Newberry took exception to the original bill’s language concerning the suspension of rules by agreement of the Majority and Minority leaders saying, “This puts too much power in the hands of the Leaders.” Rep. Nicholas Matiello countered by saying that regardless of who the leaders might be, the bill, “…leads to efficiency.”

In defending his amendment to eliminate the ‘Held for further study’ vote, Newberry said, “Every bill that comes to this floor deserves an up or down vote.” Corvese insisted that, “Just as important as the bills we pass, are the bills that we kill.”

Newberry rightfully pointed out that, even without the vote to hold a bill for further study, the sponsor can pull the bill at any time. “This held for further study, more often than not, is used to avoid a vote on an unpopular bill.”

While defending Rep. O’Neill’s amendment to require 24 hour public notice on the exact language of a bill to be voted on, Newberry said, “Sometimes we get these copies, and they’re still warm from the copier.”

Things degraded a bit at this point, and Rep. Helio Melo took a personal swipe at Newberry saying, “Maybe your copy is hot because you just show up to vote.” He claimed that, regardless of the time between finalizing a bills language and voting, the public is informed because, “They can watch the proceedings on Channel 15,” forgetting to add, ‘unless they don’t have cable TV.’

All of the floor amendments were voted down, and the bill passed as submitted.

According to Common Cause RI’s John Marion, the state’s go-to guy on open government and fair elections, “Today , what we saw was the difference between substance and symbolism.”

“The Majority offered the symbolic 10:30 curfew, which would only come in to play on a couple of nights during the session. Both Newberry’s proposal to eliminate the ‘held for further study’ vote, and O’Neill’s 24 hour public notice on the final language of a bill before a vote would come into play nearly every day of the session.”

Sorry, RI Future readers, House Democrats came down on the wrong side of open government and public notice on this one. Unfortunately, these rules are enacted through the 2014 session.

Correction: In the initial version of this article, I had confused the SUB A’s, which are only submitted to committees, and the floor amendments, which are submitted on the floor on the day that the bill is being heard by the full house. I was informed of this mistake by Rep. Newberry, who agreed with the tone and thrust of the article, and the main sponsor Rep. Corvese, who didn’t disagree with the tone or thrust, he simply told me that I, “… have no idea what a SUB A is.” John Marion from Common Cause RI must have thought it was ok, because he retweeted a link almost as soon as it hit the web.

The changes have been made, and I apologize but, cut me some slack. It was my first day on the job.

February 5, 2013February 6, 2013

Report Looks at Open Meetings Compliance

The General Assembly complied with the state Open Meetings law 96 percent of the time last year, according to our latest review.

The state’s Open Meetings law requires most governmental bodies to post meeting notices and agendas at least 48 hours in advance. While the General Assembly is exempt from the law, the House and the Senate do issue meeting notices in accordance with their own rules. We monitored that activity in order to produce the “Access 2012” report.

Accountability is a crucial gauge of government’s willingness to keep the public informed about its work.”

In developing the data, we reviewed meeting notices and agendas for 438 legislative meetings in 2012. As in previous years, nearly all the violations came in the last days of the session. Fifteen of the 19 total violations occurred during the 48 hours before the General Assembly recessed in the early-morning hours of June 13.

Broken out by chamber, House compliance was 94 percent and Senate compliance was 97 percent in 2012. Among the some of the legislature’s most prominent committees, House Finance complied 94 percent of the time while Senate Judiciary had a 97 percent compliance rate.

We began issuing annual “Access” reports in 1997.

We give the public access to legislative meeting notices and agendas and maintain a searchable database of meeting notices, agendas and minutes for most other state and municipal agencies, commissions, boards and departments.