Advocates line up behind imperfect public records law

Late last night, the General Assembly approved a strengthening of the state's deplorable public records law. It's progress, no doubt. But the bill that ultimately passed isn't quite what advocates had hoped for. And at one point in the negotiations over the final shape of the legislation, those advocates withdrew their support.

Well now, after some final tightening of the bill, at least some open-records partisans are urging Governor Chafee to sign the bill into law. This morning, WPRI-TV's Tim White, who serves on the board of the New England First Amendment Center, told me the organization backs the bill, despite some reservations. Steve Brown of the Rhode Island affiliate of the ACLU said his organization is backing the important, if flawed legislation. And John Marion of good-government group Common Cause said the measure "clearly advances the [existiong public records] law." "If the governor is serious about wanting to have more open government," Marion said, "he's got to sign this."

Chafee's office has raised concerns about the bill's impositions on government legal staff. But State Representative Michael Marcello, the Scituate Democrat who pushed for the measure, tells me he'd be surprised if the governor vetoed it, given the overwhelming support it got in both chambers of the General Assembly.

Normal 0 false false false MicrosoftInternetExplorer4 /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman"; mso-ansi-language:#0400; mso-fareast-language:#0400; mso-bidi-language:#0400;} One of the chief concerns with the law, as presently written, is that it exempts from public inspection records “which are identifiable to an individual” – a sweeping exemption that has frustrated all manner of prying reporters. White jokes that any bill a governor signs could be withhheld because it includes his name.

The bill the Assembly approved last night strips out that language and imposes a balancing test in line with federal law, deeming these sorts of records public unless release would constitute “a clearly unwarranted violation of personal privacy.” There’s still plenty of room for an overly protective city clerk to shut down access, but it’s an improvement.

The measure also makes some pension records public and ups fines for officials who violate the public records law.

There were disappointments, though. An attempt to make correspondence between elected officials about public business – a la the Sarah Palin emails that made headlines last year – was squashed. The General Assembly, it seems, did not want to open itself up to scrutiny. Shocking.

An attempt to clarify the documents law enforcementmust provide after an arrest - just one officer's report? all reports? - also died. Police departments will, presumably, remain stingy here.

But an 11th hour amendment to the bill that alarmed advocates died. Under current law, anyone who sues a public agency for access to records is guaranteed attorneys fees if he prevails in court. There was an attempt to turn that  mandate - plaintiffs shall be awarded attorneys fees - into something more discretionary - they may be awarded fees. The rationale, apparently, was that the more liberal open records regime the bill creates would attract more lawsuits and require the government to pay up more than it could afford.

Advocates questioned whether there would really be a surge in suits; media organizations are not exactly flush with cash and eager to sue these days. And they worried about stripping out an incentive to take court action when necessary: under current law, after all, the plaintiff can count on a public agency in the wrong to pay up in the end.

The amendment was squelched. And the law actually got a bit better in this area. Under the bill passed last night, a court can award attorneys fees to the plaintiff even if the government agency turns over documents before the judge issues a judgment in the case.

In other words, an agency can't fight a public records request in court for weeks on end and then give up the documents at the last minute, when it's clear the agency is going to lose, in order to avoid paying attorneys fees to the plaintiff.


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