“The concerning part,” said John Marion of Common Cause Rhode Island, “is that the executive order allows the public body to waive public access portion for purposes of ‘economic hardship’ or because it is ‘unable to provide alternative means.'”
“I’m going to be signing an executive order which will allow us to conduct all this business by phone or by video conference,” said Rhode Island Governor Gina Raimondo to reporters at her 4pm Monday press conference on the Covid-19 pandemic. “Why am I doing this? Because in this crisis time, we do need to try to continue to conduct business and do the work of the people – conduct government to the extent possible. Certain things have to happen, but we have to do it in a way that is safe.”
Raimondo’s executive order, signed shortly after the press conference, amends portions of the Open Meetings Act to allow state and municipal boards, commissions and councils to hold important meetings by phone or by video conference, as long as the public is able to access the meeting and participate. The Governor is asking non-critical public hearings to be postponed.
“For all boards and commissions and for all entities that are subject to the Open Meetings law – If you have a meeting in the next 30 days, where there’s no critical action, I would ask you to postpone it,” said Raimondo. “Postpone it until next month.”
Noting that the Open Meetings Act requires public meetings be held in person, Raimondo said, “There’s no provision for someone to call in or be on speakerphone. So for a period of time, for the next month or so, until April 15, I’m saying these meetings can happen, by phone or video conference, as long as there’s a way for the members of the public to participate.”
As for the Access to Public Records Act, another essential law protecting good and open governance, Raimondo’s order allows government agencies an additional 20 days to fill records requests.
“I’m more committed than ever to transparency,” said Raimondo, “which is why I’m holding press conferences twice a day, and everything that we know we’re sharing with the public. Having said that, we are utterly swamped dealing with this crisis, so APRA is in effect but in the executive order… I am offering a 20 day extension for all APRA requests.”
Raimondo said that she was in consultation with Attorney General Peter Neronha’s office as to how best to adjust the Open Meetings Act and APRA. Attorney General spokesperson Kristy doeReis told me that her office “will be providing guidance to the general public on what this means” and will [hopefully] have a public friendly version of the announcement tomorrow. The Attorney General’s Office will continue to serve as a resource for guidance and advice regarding these statutes going forward.
John Marion, executive director of Common Cause Rhode Island, noted that Raimondo’s executive order is similar to those issued in other states. “Like other states, including Massachusetts and California, Governor Raimondo issued an executive order suspending parts of the state’s Open Meetings Act,” said Marion. “Specifically, it allows meetings to be held by telephone or videoconference if the meeting is for an ‘essential purpose’ so long as the public can observe. It defines essential purpose as ‘either that which is necessary for continued government operations or to ensure compliance with statutory or regulatory deadlines.’ This is in line with what we’re seeing in other states, and makes sense given the current state of emergency where people are encouraged to not gather in large groups.”
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But Raimondo’s executive order goes further than other states.
“The concerning part,” said Marion by way of caveat, “is that the executive order allows the public body to waive public access portion for purposes of ‘economic hardship’ or because it is ‘unable to provide alternative means.’ There are free conference call services that are available that allow for public access. No public body should avail themselves of that waiver.”
Steven Brown, Executive Director of the ACLU of Rhode Island, also had concerns. In a statement, Brown said that the ACLU recognizes “the difficult situation faced by public bodies that need to conduct urgent public business but, for legitimate health and safety reasons, are limited in their ability to physically meet. We note that the executive order expires after one month and allows remote meetings to be held during that time period only to conduct “essential business” and with adequate alternative means of public access. These are crucial limitations that we support.
“However, we believe the executive order falls short in a few respects. First, if a meeting is going to be held remotely, we believe that contemporaneous access by the public is necessary but not sufficient. Public bodies meeting remotely should also be required to either audio or video record the meeting. There is something too ephemeral about not requiring a physical preservation of a meeting that has taken place electronically.
“Secondly, we are concerned about extending the time frame for public bodies to respond to open records requests. We know that too many public bodies routinely – sometimes automatically – seek extensions of time to respond to APRA requests. Allowing agencies to invoke an additional 20 business days extension means that important records can be withheld from the public for more than two months, which is a truly significant amount of time. While the extension can, in theory, only be requested if necessary for reasons related to this health emergency, public bodies are bound to make use of that excuse all too easily.
“Finally, the order is ambiguous in allowing public bodies to produce records solely in electronic format. While we assume this is not its intent, one could read this provision as allowing agencies to withhold records if they cannot be produced electronically.
“In raising these concerns, we fully appreciate the difficult balancing act that the Governor and public bodies face at the moment. Because this executive order expires in 30 days, we strongly hope that if this health emergency continues beyond that time, any future order will address these issues.”