Freedom of Information
Background and History
When is a public record NOT a public record?
Rhode Island’s Access to Public Records Act (APRA: § 38-2) broadly defines which public records may be inspected and copied by the public.
That broad definition, however, contains a myriad of exceptions. Records revealing the progress of a criminal investigation may not be disclosed, for example; records of illegitimate births are not public records; trade secrets or negotiations over public works contracts are not public records. Pension records are, however, public records.
The law now states that information about public employees’ “name[s], gross salary, salary range, total cost of paid fringe benefits, gross amount received in overtime, and other remuneration in addition to salary, job title, job description, dates of employment and positions held with the state or municipality, work location, business telephone number, the city or town of residence, and date of termination shall be public.”
One set of exceptions to the requirement that the public be permitted access to public records concerns personal privacy. The law now states that a wide range of personal documents (medical records, for example, or pupil performance records) are not public records and may not be inspected. The list of exemptions also includes “information in personnel files maintained to hire, evaluate, promote, or discipline any employee of a public body.”
Missing from the APRA:
A “balancing test” which allows custodians of public records and the courts to determine whether the interest in public disclosure is outweighed by a private interest in maintaining the confidentiality of a particular public record. Right now there is no such test in § 38-2-2. Custodians of public records can, therefore, deny citizens a wide range of records on the grounds that they are personal records.
The exemption for personnel records used to promote public employees has been used to deny access to files which document the courses taken by state employees for which they have received higher salaries and thus higher retirement benefits. Attempts to study these promotion records have been rebuffed, even though those seeking access have not requested the names of state employees in the records.
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Denying Access to Public Records
The Access to Public Records Act (APRA) is silent about the responsibilities of public employees who have custody of public records. There are no legal requirements for training them about their duties, particularly about what records they may legally sequester and what records they must release to comply with the law. As a result, public employees routinely deny access to public records not protected by law, sometimes out of ignorance, sometimes to avoid “getting in trouble” with their supervisors, and sometimes out of plain orneriness.
The APRA can be enforced, however. When a Barrington couple was denied access to records concerning an increase in the valuation of their home, they complained to the Department of Attorney General. After an investigation, the department sued the town for violating the APRA.
Shortening the Time for the Release of Public Records
The APRA does not presently require state agencies to release public records within a stated time limit. It says only that a state agency must answer such a request within ten business days but only if it decides to deny the request for access. In addition, state agencies which do not answer a request for access are deemed to have denied the access. In 2003, the Common Cause Education Fund conducted a study to test compliance with freedom of information regulations by requesting information about public employees, entitled Public Employment in Rhode Island: Testing the Public’s Right to Know.
Common Cause Rhode Island promotes:
- Adding a “balancing test” to Rhode Island’s Access to Public Records Act.
- Passage of legislation mandating training for custodians of public records.
- Passage of legislation shortening the time for the release of public records.
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