McKee administration blocks release of public information with $930 price tag

How the McKee administration violated APRA and continues to abuse the spirit of public records law to shield his administration and himself from accountability in the disastrous handling of the homeless crisis here in Rhode Island.

Rhode Island News: McKee administration blocks release of public information with $930 price tag

December 22, 2022, 2:37 pm

By Steve Ahlquist

One of the solutions touted by the McKee administration to the problem of evicting the encampment of unhoused people from Rhode Island State House grounds, in addition to the opening of the Cranston Street Armory as a warming shelter, was to contract hotel rooms at the SureStay Hotel in Smithfield. The effort to get these hotel rooms available was not made by the state directly, but went through Community Care Rhode Island‘s Benedict Lessing. According to the Secretary of Housing, Lessing used State Fiscal Recovery Funds and Social Services Block Grant funding to acquire the rooms.

When Josh Saal, Governor Daniel McKee’s Secretary of Housing, approached Lessing about placing people currently camping at the State House into these rooms, Lessing pointed out that according to state and federal law, in addition to the contracts Community Care RI signed to enable state and federal funding, placement of people in need of shelter could only be done through CES, which stands for Coordinated Entry System (NOTE: Although Benedict Lessing has not responded to Uprise RI’s efforts to contact him, we consider the providers to be innocent of wrongdoing. Evidence points to Governor McKee and Secretary Saal pressuring providers and seemingly violating rules and policies).

The CES system was funded by the federal Department of Housing and Urban Development (HUD) and providers that receive HUD funding to perform services for the unhoused are required to utilize CES. The state’s Continuum of Care regulations require that CES is in place and and used. Rhode Island’s CES is statewide, and matches shelters to those in need no matter where they are located in the state. Outreach workers and providers believe that CES is the best way to distribute the very limited shelter bed resources in a fair and equitable way.

“If provided the resources, we could immediately reach out to every unsheltered Rhode Islander to connect them to an open bed or support,” wrote the Rhode Island Coalition to End Homelessness in a recent press release. CES is the key to allocating those resources, were they to be provided.

Governor McKee and Secretary Saal are not providing those resources. Instead, on December 7th they issued an eviction order to those camping on State House grounds threatening arrest and prosecution for those who did not comply. After ten days of legal battles and maneuvers, a Superior Court Judge ruled that the homeless encampment was not a protest, paving the way to clear the encampment, which occurred on Saturday.

During that ten day period of legal wrangling, Secretary Saal was busy trying to arrange shelter beds for those outside the State House. There is no evidence that his efforts were on behalf of all Rhode Islanders experiencing homelessness, but rather only those outside the State House. In fact, it is a certainty that unhoused Rhode Islanders who were assessed as having greater need of shelter than those camping at the State House lost out on shelter beds. The exact number of those who lost out is unknown, but estimates are in the dozens. Uprise RI sent an APRA (Access to Public Records Act request) to Governor McKee and Secretary Saal hoping to clarify what was being done. At first the APRA request was ignored, in violation of guidelines from the Attorney General. Then the administration attempted to delay a response by requesting Uprise RI resubmit it via a special online form. Uprise RI reminded the Governor’s office that APRA prohibits this type of request after we fulfilled the necessary requirements.

Yesterday, after the close of business, the Governor’s office replied with what could only be described as a ransom demand of $930 for the records. More on this in a moment.

While unfortunate that the McKee administration is opposing the public’s interest and dragging out the inevitable release of these documents for as long as possible, Uprise RI did receive one email via an anonymous source. In it, Maryrose Mensah, working on behalf of Secretary Saal, tells provider Benedict Lessing that OHCD (Office of Housing and Community Development) is “waiving the contract requirement provision(s) relating to CES solely for referrals [to] the SureStay program from the Secretary of Housing for a period of 14 days effective December 7, 2022.”

Note that the email, dated December 13th, waives the requirement retroactively back to December 7th, the day that Governor McKee issued his eviction order to those sleeping at the State House encampment. Note also that Secretary Saal is offering to waive CES requirements. Though the Rhode Island Secretary of Housing can waive state CES requirements under certain circumstances, he lacks authority to waive federal CES requirements. Further, Uprise RI’s research could not find a single instance, before the issuance of this email, of CES requirements ever being waived. In fact, the state has gone after shelter providers in the past for taking state and federal money and not properly utilizing CES.

In response to an inquiry, Chris Raia, who does communications work for Secretary Saal, wrote,

Some of our contracts with homelessness service providers allow OHCD to waive or modify state provisions related to the CES, which was granted by the email. There are no federal CES requirements for this specific project. We are taking every available action to identify and remove barriers that prevent or delay Rhode Islanders experiencing homelessness from accessing safe shelter and other available resources.

A follow up email with clarifying questions received the following response:

Q. Exactly what “state provisions related to the CES” were waived or modified? Another way to phrase this is “what contract requirement provisions” are being waived here?  

A. That the provider use the CES system.

Q. Were these provisions waived? 

A. Yes, for a period of 14 days starting on December 7.

Q. Was this offer accepted? 

A. We received an acknowledgement from the provider.

Q. How often are CES requirements waived, and when they are, are they for unhoused people elsewhere in the state or only for those in front of the State House?

A. Certain projects can waive CES requirements at the discretion of the funder.  

Q. What are the funding sources of “this specific project.”  

A. State Fiscal Recovery Funds and Social Services Block Grant.  

Q. HUD is collecting information about this issue right now. Have they been in contact with the office of Secretary Saal?

A. Secretary Saal has routine communications with housing partners, including HUD. His most recent communication with HUD was a phone call earlier this week. 

Uprise RI has been in contact with the Christine Baumann, Regional Public Affairs Specialist – Region I, from the federal office of HUD. Baumann confirmed that HUD is gathering information on this issue and writes,

Thanks for the follow-up. Our office is in the process of gathering information on this issue right now. Typically, HUD does not step into situations where cities or states are taking action to house homelessness individuals but will take into account any information we receive to ensure compliance with HUD regulations.

The email you sent seems to be an email between the state and a state contractor. We do not know what contract requirement provision they are waiving, so we can’t speculate on that email. We recommend that you reach out to the state to obtain the particulars of the provision that the state is going to waive.

Sadly, the particulars are in a contract Uprise RI is being refused access to because the McKee administration is defying the spirit of APRA with ongoing delays and an outrageous labor charge of $930 for the records.

Violating federal policies regarding CES may put the state at risk of losing federal funding for dealing with homelessness. But worse, failing to fund an adequate number of shelter beds and prioritizing people for shelter based on politics, not equity and fairness, threatens the lives and safety of hundreds of the most vulnerable people in our state.

The most recent count puts the number of unhoused people in Rhode Island sleeping in “places unfit for human habitation” at 509. Two weeks ago the number was 385.

The waiting list for people looking for shelter beds is now at 594 persons.

Governor Dan McKee and Housing Secretary Josh Saal have cleared the encampment from State House property, but have done little for the hundreds of Rhode Islanders spending their nights outside in places “unfit for human habitation.” A promise to shelter everyone who needed it by Thanksgiving was unapologetically broken.

The APRA Requests

Uprise RI sent three separate public records requests to the McKee administration, because we knew that one request, information contained in emails, would be more time-consuming. McKee administration lawyers instead treated them as one single APRA request, in order to entangle the easy-to-release information with the more time-consuming requests, with the purpose of delaying the release of all the information to the public. This is a violation of the APRA law as separate requests are only permitted to be treated as one request for purposes of determining costs (RIGL § 38-2-4). They must still be treated as separate requests otherwise.

One of the requests asked for a copy of the SureStay Hotel contract with the state. This is a simple contract that Secretary Saal should have on hand. It is a public document and easily transmissible via PDF. Contained inside this contract will be all the information about what CES requirements were being waived. Our estimates are that this request would take approximately five minutes or less to fulfill and require no hard costs. It is impossible to justify how the electronic submission of a PDF via email would cost the state $930 in labor time. The maximum labor rate that APRA permits to be charged to the requestor is $15/hr. Which means the McKee administration is making an outrageous claim that it will take them over 60+ hours to attach a PDF to an email and click “Send.” This raises serious questions beyond those related to our records requests.

Our second request was simple: We wanted to know how much the law firm of Adler, Pollock and Sheehan charged the Governor to represent his administration in Superior Court against the ACLU and the Center for Justice to help evict unhoused people from the State House. In a rare move, the Rhode Island Attorney General declined to represent the state in this case, but the public deserves to know how much of their tax dollars were given to one of Rhode Island’s most expensive and exclusive law firms to evict the poorest among us and destroy their property.

Our most important APRA request regarded the controversial CES “waivers.” Uprise RI wrote,

This is an APRA [request] for emails and documents from the staff or the person of Secretary Saal and or Governor Daniel McKee to (or from) any and all shelter providers or housing/homeless orgs or any other providers of shelter including motels, hotels, apartments, rental homes; or other staffers and/or Department heads pertaining to the Continuum of Care, the Coordinated Entry System, HUD, and the relocation of the people at the homeless encampment in front of the State House (or elsewhere) during the month of December, 2022.

After receiving the anonymous email mentioned earlier, we added:

I would like to add the emails of Maryrose Mensah to the two names mentioned in the email, those names being Josh Saal and Daniel McKee. In addition, I think the term CES should be included since it’s meaning is the same as Coordinated Entry System, and COC which means the same as Continuum of Care.

This is the core of Uprise RI’s interest in this issue, and the presumed reason the Governor’s office has put up roadblocks preventing disclosure. The waivers do not appear to be not criminal acts. But they are blatantly political acts, done to provide cover for a Governor and Housing Secretary who claim to doubt the facts about the extent of homelessness in Rhode Island.

Instead of tackling the reality of homelessness, the Governor and Housing Secretary are attacking the accuracy of the numbers being provided by advocates. Instead of adequately funding shelter beds for every Rhode Islander experiencing homelessness, the Governor and Secretary Saal are funding enough beds to clear the State House encampment, by making personal phone calls and encouraging shelter bed providers to violate contracted and mandated requirements to shelter an unknown number of people encamped at the State House. And in doing so, dozens of people, many disabled, waiting for their turn to be housed on the CES system, were forced to wait days or weeks longer than they would have had to otherwise.

$930 is an outrageous charge for information we believe to be of vital importance and interest to Rhode Islanders hoping to understand how the Administration of Governor Daniel McKee operates when under pressure. The Governor knows a donor-based organization like Uprise RI cannot spend $930 for a single public records request, especially as the records requested, all of which exist in electronic form, are not labor-intensive to retrieve. In fact, as their response below reveals, the state already knows how many records there are.

Uprise RI has appealed the Governor’s APRA response to the Rhode Island Attorney General. Further, we are in the process of asking that HUD’s Office of the Inspector General, and the Oversight Committees of the State House of Representatives and the State Senate look into this issue of CES waivers. We also ask readers to contact their state representatives to request that the Access to Public Records Act be amended so that the actions taken by Governor McKee’s lawyers are no longer permissible.

Here is the Governor’s response to Uprise RI’s three separate APRA requests: