“The Attorney General’s opinion corrupts the APRA by calling for a ‘balancing test’ in all circumstances. This adulteration of the statute narrows rather than expands the documents available to the public and is directly contrary to legislative intent and to the jurisprudence of the Rhode Island Supreme Court.“
[Update: See below fro a response from the office of the Rhode Island Attorney General.]
At a time when the Black Lives Matter movement has prompted demands for more police accountability in Rhode Island and across the country, the state Attorney General’s office has issued an Access to Public Records Act (APRA) opinion which makes it more difficult for the public to monitor allegations of misconduct by police officers in the state. This setback for open government came in response to an APRA complaint that the ACLU of Rhode Island had filed earlier this year against the Narragansett Police Department for refusing to release any copies of its final investigations of complaints of police misconduct.
In 1982, in a case brought by the ACLU on behalf of a Brown University newspaper, The Rake, seeking seven years of reports of final investigations of police misconduct complaints by the Providence Police Department, the Rhode Island Supreme Court ruled that those reports constituted public records relating to the “management and direction of a law enforcement agency” that were required to be disclosed under APRA. The Court also held that the newspaper’s agreement to have the names and other identifying information of officers and witnesses redacted from those findings satisfied APRA’s protection of records that contain personally identifiable information.
In recent years, however, Attorney General advisory opinions have had the effect of significantly narrowing the scope of that court ruling and a similar one issued by the Supreme Court in 1998. This most recent advisory opinion, issued last week, reaffirms and partially expands upon those previous troubling Attorney General opinions by supporting the following propositions:
- Even with all personally identifiable information redacted, the disclosure of any final records of internal affairs investigations must be considered by the police department on a case-by-case basis.
- Reports of final investigations of police misconduct do not per se constitute records of public interest.
- A person requesting police misconduct records can be required to explain the public interest warranting disclosure of these records, notwithstanding APRA’s requirement that the burden of proof in on public bodies to demonstrate that a record should be withheld from public view.
- A “balancing test” to be used for considering the release of personally identifiable records – a test added to APRA in 2012 to make some of those records more public – can be used to keep previously public records secret, even when the record has been stripped of personally identifiable information.
- In using the “balancing test,” police departments can consider more than half a dozen broad criteria as they see fit to decide whether any particular final report of a police misconduct investigation should be released.
The complaint leading to the Attorney General opinion issued last week was filed by ACLU of RI cooperating attorney James Cullen on behalf of Dimitri Lyssikatos, a member of the Rhode Island Accountability Project. Lyssikatos’s APRA request to the Narragansett Police Department sought four years of records of its resolution of complaints of police misconduct. However, the police department claimed, notwithstanding the Supreme Court decisions cited by the ACLU, that all those reports were confidential. While the Attorney General’s opinion strongly suggests that at least some of the records would need to be turned over, the Department will be able to give individual consideration to each one, balancing a variety of vague factors in determining whether to release them.
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“The reports we requested have long been considered public records,” said Lyssikatos. “It was only after the Rhode Island Accountability Project began to assemble them into a public database that law enforcement and others began their concerted effort to hinder our work by undermining the public records law. In this current climate of distrust and strife, it is especially important that law enforcement agencies remain transparent and accountable. Secrecy breeds corruption, and without the ability to scrutinize how our law enforcement agencies handle internal and external complaints there can be no faith in the integrity of the system.”
“The Attorney General’s opinion corrupts the APRA by calling for a ‘balancing test’ in all circumstances,” added ACLU cooperating attorney Cullen. “This adulteration of the statute narrows rather than expands the documents available to the public and is directly contrary to legislative intent and to the jurisprudence of the Rhode Island Supreme Court. In addition, the Attorney General’s proposed balancing test imposes significant transactional costs and procedural hurdles that fly in the face of the spirit of APRA.”
“A basic method of promoting police accountability has been undermined,” said ACLU of RI executive director Steven Brown. “When the Rhode Island Supreme Court ruled in 1982 that The Rake newspaper was entitled to seven years worth of these important documents, it would have been impossible to imagine that in 2020 the Attorney General would conclude that the police department could now examine each of those records one by one to decide which of them could be released, even with all personally identifiable information removed. This decision is a deeply distressing setback for the public’s right to know, and is especially troubling at a time when the need for greater police accountability is at the forefront of public discussion.”
A related case filed by the ACLU against the Pawtucket Police Department, which has thus far met a similar fate, is pending in Superior Court. The ACLU plans to pursue this issue to the Rhode Island Supreme Court and seek reaffirmation of The Rake decision.
Background information on the filing of the Narragansett complaint can be found here.
The office of the Rhode Island Attorney General responded:
In exercising its duty to review complaints under the Access to Public Records Act (“APRA”), the Office of Attorney General must apply the law as written and as interpreted by the courts. The Attorney General has consistently advocated for greater transparency and accountability by all public bodies and believes that such transparency is crucial to promoting the public’s confidence in its governmental institutions, including law enforcement. At the same time, the law recognizes that there may be times where legitimate privacy concerns are implicated, and the law has provided a mechanism for protecting those interests.
This Office’s recent finding in Lyssikatos v. Narragansett Police Department, PR 20-58, makes clear that, under the APRA, internal affairs reports are public unless disclosure would constitute a clearly unwarranted invasion of privacy. Because the Narragansett Police Department withheld all internal affair reports, this Office’s finding directs the Police Department to reconsider its decision, applying the legal framework set forth by the Rhode Island Supreme Court, the Rhode Island Superior Court, and this Office.
As the finding makes clear, this Office found that the Police Department did not adequately consider the public interest in the disclosure of the reports and did not appropriately consider whether any privacy interests may be satisfied by disclosing reports with appropriate redactions, which the Complainant had later indicated he would accept. The Department has until September 15 to re-analyze the reports and provide a supplemental submission to this Office, after which, the Complainant may also submit a response. As such, this matter remains open and pending with this Office. The Office has not yet issued a finding regarding whether any of the requested reports may be withheld under the APRA.
This Office’s finding in this case was based on the plain language of the APRA and directly tracks a recent Rhode Island Superior Court decision issued by Judge Melissa A. Long in Lyssikatos v. City of Pawtucket, PC 2017-3678 (March 18, 2019). In that case, the Court also rejected Complainant’s argument that internal affairs reports are per se public and there is no need to apply the balancing test. Further, on May 22, 2020, the Rhode Island Supreme Court rejected Complainant’s petition to immediately review and reverse the Superior Court’s decision.
This Office has previously ordered the release of internal affairs reports in prior findings issued in 2019 and 2020. See, Farinelli v. City of Pawtucket, PR 20-48, and Farinelli v. City of Providence, PR 19-04.