Behind Closed Doors: The Ongoing Struggle for Public Records Access in Rhode Island

Photo illustration: Emily Rietzel and Getty Images.

On a June morning in 2012, Tim White was a witness to a milestone in government transparency. 

After fourteen years, freedom of information advocates had succeeded in shepherding the first major overhaul of the state’s Access to Public Records Act to passage. White, a member of WPRI’s investigative team and of the board of directors for the New England First Amendment Coalition, had tamped down his discomfort to testify on behalf of the legislation, before politicians he covered, in a cramped hearing room. (White is old-school — reporters are usually not part of the story.) He brought a visual aid — a North Providence Police arrest report about a firefighter accused of pocketing a victim’s pills during a rescue call, drowning in a sea of black. Only fifty words survived. 

And now, he was invited to capture the moment when Governor Lincoln Chafee signed the bill into law. It was just one in a stack, and within three minutes White got his B-roll and a soundbite and headed back to the station. 

The new law retained numerous exemptions to the public’s access to government records. But, for the first time, government employment contracts were deemed public, and — more significantly — the law added a “balancing test” to the exemption that automatically withheld all “personally identifiable” records. The revisions gave the attorney general’s office the authority, on a case-by-case basis, to weigh the public’s right to access a government record against an individual’s privacy rights. 

White thought, “Well, let’s see how this thing works.” 

Last April, WPRI was chasing a hot tip: DAVID PATTEN, director of the state’s property management division, and Director of Administration James Thorsen had allegedly behaved badly on a March tour of a project developed by Scout Ltd., the Philadelphia contractor hired to transform the Cranston Street Armory in Providence into an indoor soccer field, a business incubator and state office space. The details, they learned, were in an explosive email written by Scout principals to their Rhode Island lobbyist Jeff Britt, who had forwarded it to Governor Dan McKee’s chief of staff. WPRI broke the story of the email’s existence and immediately filed an APRA request for it, which the governor’s office promptly denied. The station and The Providence Journal turned to Attorney General Peter Neronha to apply the balancing test. Bits of the story dribbled out anyway. Then, on June 7, Neronha ruled that the email should be released.

“I remember yelling in the office, ‘Aha! This is it! This is what I’ve been talking about! I fought for this a decade ago!’” White says. “What’s important is we can point to the Scout email and the precedent set by the AG’s office and say that when the balancing test is applied in a case like this, the public’s interest outweighs privacy interests. To me that was so exciting. It took a decade for a decision like this to come down, but now it has traction.” 

This fall, open government, civil and voting rights advocates and press associations will be looking for more traction. Senator Louis DiPalma (D-Little Compton, Middletown, Newport, Tiverton) expects to prefile a bill before January’s General Assembly session to once again make major improvements to APRA. Last session’s version — sponsored by DiPalma and Representative Joe Solomon Jr. (D-Warwick) — went down in flames. The bill proposed expanding access to public safety records, documents discussed at public meetings and subpoenas, and addressed technology that has created new types of public records, such as police body camera footage. It also lowered the costs of obtaining government records and increased the penalties on government entities that willfully withheld them. 

“Whenever you are talking about shining more light on anything — specifically on government — people are inclined to keep things just as they are.”  —Senator Louis DiPalma

It was an ambitious effort that attracted some impressive enemies: the governor’s office, Rhode Island Police Chiefs’ Association, state police, Department of Corrections, Department of Environmental Management, Department of Revenue, Executive Office of Commerce and the R.I. League of Cities and Towns. They raised objections to just about every aspect of the bill, from the reasonable to the inexplicable. 

Law enforcement, for example, was concerned about releasing body camera footage of use-of-force incidents after thirty days if the investigation was still open; the governor’s office argued that financial penalties for public agencies that improperly withheld documents would be borne by the taxpayers — who presumably would get that money back when it goes into the General Fund. 

DiPalma was not surprised.

“Whenever you are talking about shining more light on anything — specifically on government — people are inclined to keep things just as they are,” he says. “That’s the biggest pushback at a macro level.”

DiPalma and other prominent backers of the bill spent the summer trying to meet with opponents to see if they could address their objections in an amended bill. RIPCA’s president, retired Little Compton Police Chief Sidney Wordell, was optimistic.

“We understand the intent — things like finding the line that’s drawn on what information should be released. In terms of internal investigations, we need to find that line to determine at what point the public right to know doesn’t interfere with an individual’s due process or personal life even though it’s had some kind of effect on their job,” he says. “But I think we can find that point. There’s a desire by law enforcement to be as transparent as possible.”

the freedom of the press to operate without government interference is a constitutional right enshrined in our founding documents. But the people’s “right to know,” to get information from the government, is a more recent concept. In 1955, Democratic Congressman John Moss made the first proposals for a federal Freedom of Information Act to counter rising government secrecy around the Cold War. It eventually passed in 1966, but was opposed by federal agencies and was politically unpopular. President Lyndon Johnson, who had his own reservations, signed the bill without a ceremony.  

The first state statute governing public records was added to the books in 1979, when Rhode Island became the forty-ninth state to pass its own version of the federal FOIA statute. Over the years, it accumulated twenty-eight exemptions to FOIA’s nine, weighted heavily in favor of privacy. In the next three decades, the battle over public access to government actions was fought in court as advocates in the General Assembly pushed for legislative changes. For example, in 1991, APRA was amended to deem public new categories of personally identifiable records, including government employee salaries and benefits. 

Attorney Joseph V. Cavanagh Jr., who has represented The Providence Journal in many Superior Court APRA battles, says that he has seen a steady rise in reporters’ reliance on records in their reporting as “everybody got more comfortable with doing the public’s business out in the open,” he says. “Even though people get frustrated, overall there’s been a lot of progress.”   

Steven Brown, executive director of the state’s chapter of the American Civil Liberties Union, sees a lingering culture of secrecy and plenty of room for improvement. 

“We do not have a law that one should rest their laurels on,” he says. “Every loophole that gets corrected, government officials find new ones.” He points to exorbitant fees, ACLU lawsuits over police misconduct records, some agencies’ strict adherences to APRA procedures as a pretext to deny a request, and questionable interpretations, such as former Attorney General Peter Kilmartin’s decision that the government could charge requestors for the time spent denying their request.  

“All of which seriously impacts people’s right to know,” Brown says.

No state has a perfect access to records law, says Justin Silverman, NEFAC’s executive director, but Rhode Island might aspire to Florida.

“Florida has had one of the strongest laws in that there’s a presumption that the public is entitled to government information and there’s a strong burden on the government to prove otherwise, and that’s very much the opposite of what you get in most other states,” Silverman says. “More typical are laws that include many exemptions and carve-outs for information the public will not have access to.” 

Over the last ten years, the AG’s office has seen a steady rise in the number of APRA requests: from fifty-six in 2012 to 168 in 2022. Even without a change in the law, Rhode Island could be much more like Florida, Neronha says. 

“The phrase I use is: [APRA] is a floor, not a ceiling. The APRA law says that everything is a public record unless there is an exemption,” he says. “But you don’t have to apply it. You could decide that you are not going to use the exemption, and just turn it over. And in some instances, you are better off not using them.”

in his three years as governor, McKee has gained a reputation in press circles for defensive and tight-lipped responses to controversy — or even conventional questions. He declined to be interviewed for this story, reissuing previous sentiments through a spokesperson regarding his administration’s “concerns” about the previous bill, and the governor’s initial decision to withhold the Scout Ltd. email: “…it is important to note that in the attorney general’s finding, he stated

that ‘the governor’s office applied the balancing test in good faith….’ Given that the matter was related to a Human Resources investigation regarding serious allegations, the state was working to ensure that the accused employee was afforded their due process rights as the investigation was open.”

“The relationship between the press and the governor’s office is probably the worst I’ve seen in fifteen years,” says John Marion, executive director of Common Cause Rhode Island. “I’ve seen him use language that walks right up to calling the coverage of his administration fake news.” 

But he did not contest Neronha’s decision. The morning the email was released, the WPRI newsroom buzzed with one purpose: to tell the story with speed and accuracy. According to Scout officials, Patten had demanded celebrity treatment, made racist and misogynistic comments to his hosts, and solicited an extravagant lunch and other small gifts. 

The revelations touched off an investigation by the state police. The state Ethics Commission is looking into Patten and Thorsen — and McKee for failing to pay for a January lunch he had with Britt and Scout officials. Patten resigned with apologies. Thorsen took his scheduled departure for a position with the United States Treasury. McKee, who inherited the Armory project from Governor Gina Raimondo, did not support it, and budgeted no money for its development, paying another consultant, JLL, $84,000 to assess the plan. When JLL concluded that the $60 million dollar project would lose $10 million over fifteen years, McKee terminated the contract, saying it was too “risky” for the taxpayers. 

Meanwhile, the state still owns the Cranston Street Armory, so taxpayers will spend millions to raze it or keep it from deteriorating further. As of August, the city of Providence, which owns the parking lot and adjacent land, was in discussions to take over this beautiful white elephant.  

The story isn’t done, but it will be told.

“The work that the government does belongs to the people,” White says.

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Ellen Liberman is an award-winning journalist who has commented on politics and reported on government affairs for more than two decades