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Friday, August 30, 2013

What is the people’s right to know?

Chipping away at the stonewall
By Will Collette

Even though Charlestown seems to be pulling back a bit from its near-total ban on release of public records under the state open records law, there are still some serious unsettled issues about Charlestown’s open government policies. 

Hopefully, some of those issues will be addressed soon by the RI Attorney General’s decision on the formal complaint I filed with the state Attorney General that alleges Charlestown violated the Access to Public Records Act.

QUICK BACKGROUND: I filed the complaint on July 21 after Town Clerk Amy Weinreich claimed she no longer maintained custody of public court filings in Charlestown's lawsuits, specifically the Town’s July filing with the court seeking to regain “standing” in the Whalerock wind turbine case and Whalerock’s argument against it. I filed an appeal with Town Administrator Mark Stankiewicz and he stood by Ms. Weinreich’s claim that she no longer maintained custody of these records.

The problem is that the two court filings do exist and as Town Clerk, Amy is being paid to be the Town’s official custodian of public records. It’s in the Town Charter. If those records are not in her immediate possession, our Town Solicitor Peter Ruggiero has them. It’s part of Amy’s job as records custodian to get public records when they are requested by a citizen.

After received the Town Administrator's denial, I filed a formal complaint with the state Attorney General (click here to read) noting that the records in question do in fact exist, are public records and that the town was obligated to release them. 

Up until there was some change in policy at Town Hall, the Town routinely provided me with electronic copies of court records similar to the ones I requested in this instance. As Progressive Charlestown readers know, I use those records to provide you with timely and accurate reporting on town news.

A few days after I filed my formal complaint, I received another response from the Town Clerk to another one of my routine open records requests. Again, Town Clerk Weinreich refused to provide an array of records, citing the same reason – that the records either don’t exist or the town doesn't have them.

I immediately amended my complaint to the Attorney General to include this new set of document denials, noting that the town now seemed to be broadening the scope of its stonewall tactics.

The Attorney General’s office accepted my complaint and asked the Town for a response. That response was sent to the AG’s office by Town Solicitor Peter Ruggiero. Click here to read his filing.

Town Solicitor Peter Ruggiero: says he's not a town employee, not
subject to the open records act and can withheld public records
from the town if he chooses
In his rationale for the town’s stonewall tactics, Ruggiero admits the records I requested did indeed exist. 

He admits he either created them or received them in the course of his duties as Town Solicitor. 

He admits that he has them. 

He admits they are public records saying the records automatically became public as soon as they are filed with the court.

But despite all that, Ruggiero argues the Town was justified in denying me copies of those records.

He bases the town defense on two arguments. The first is that he is not a town “employee.” Since he is not a town employee, he claims, he is outside the reach of the state open records law. He is simply the holder of a “private vendor contract” [page 2].

Second, he claims that he has the right to decide which court records he will forward to the Town Clerk and which he will not [page 2] even though he claims he is just a contractor.

He says it is not his “practice” to forward what he describes as “interlocutory litigation documents” to the Town [page 2]. He claims these types of records do not constitute “official” or “public business” [page 3]. 

I’m not making this up. Read his letter the the Attorney General for yourself.

The Attorney General’s office gave me five business days to file a response to Mr. Ruggiero’s claims, which I did. Click here to read my response.

The first issue I tackled was Ruggiero’s claim that he is not a town “employee.” Whether he is an “employee” or not is irrelevant, since the open records act covers “any person...acting on behalf of...any public agency” and doesn't even use the word “employee.” The law makes no distinction between town staff, volunteer commissioners, elected officials, part-time employees, consultants or contractors. Here’s the exact language:

See if you can find the word "employee" in this definition

The second major issue is which town official is responsible for maintaining town records. The answer is pretty simple. The state Access to Public Records Act requires every public body to designate the person who will be responsible for compliance with the open records law. 

Charlestown’s Code of Ordinances, Article XIX, § C-53.F designates the Town Clerk (Amy Weinreich) to “Act as custodian of the Town Seal and of all the official documents and public records of the town.”

The Town Charter also describes the position of Town Solicitor in detail. There is nothing in that description that supports Peter Ruggiero’s claim that he is just a disinterested, arms-length contractor who doesn't take direction from the town or act in its interest. There is nothing in the Charter that permits the Town Solicitor to be the custodian of town records. Here’s what the Charter says:

Article XXXIX: Powers and Duties [of the Town Solicitor]

The Charter says Amy is officially responsible for town
records and Peter is not.
I believe the 2010 amendment (§ C-145) to the Town Charter reflects the Town’s determination to widen the scope of records the Town Solicitor is obligated to file with the Town Clerk so they “shall become a public record.”

Then there was Ruggiero’s claim that he has the right to substitute his own judgment for the law. 

He claims that he has the right to decide what records to hold and which to pass on to the Town Clerk and that apparently includes those pesky “interlocutory litigation documents” even though he admits they are public records.

You won't find any basis for that claim in state law, the Town Charter or Code of Ordinances. 

It may also be an ethical violation. I would not be happy if my lawyer decided to withhold any litigation records from me. Further, if Ruggiero’s relationship to the town is as tenuous as he claims (“private vendor contract”), why should he be entrusted to hold these records?

Before the July shift in Town open records policy, Ruggiero passed along tons of “interlocutory” documents to the Town Clerk and she in turn to me. I sent the Attorney General’s office thirteen examples of such “interlocutory” documents generated by the Whalerock case alone. These thirteen documents were sent to me between January and June, before the town’s open records stonewall was erected in July.

Just about all of those records were far less significant than the two documents that sparked my complaint to the AG – the town’s Motion to Reconsider Judge Rodgers’ decision denying the town standing in the Whalerock case and Whalerock’s counter-argument.

But it really doesn't matter whether these records are important or dull and boring. Ruggiero cannot claim they are not "public business" because the state open records law already covers that issue: 

§ 38-1-1.1  Definitions. – For the purpose of this chapter:

   (2) "Public business" means any matter over which the public body has supervision, control, jurisdiction, or advisory power.

And that definition covers these so-called interlocutory litigation documents. Peter Ruggiero is not allowed to re-write state law.

What changed? The Town won't say

Something changed in July to lead the town to impose a records stone wall and I wanted to know what. So I asked. 

I filed yet another open records request, this time asking for any record regarding open records policy or changes to that policy issued since the February hiring of Town Administrator Mark Stankiewicz. 

The Town says no such records exist.

That pretty much rounded out my case to the Attorney General’s Office though there was one final issue raised by the Town Administrator that seemed worthy of a response. Stankiewicz, and in his letter, Ruggiero, both say that if I want those records, I should go get them from the court house.

In fact, when I realized that the town was going to stonewall me over those Whalerock records, that's exactly what I did, so that I could write an article about them.

I noted in my response to the Attorney General that there is nowhere in the state open records law that absolves the town of its duty to disclose a public record that might exist in some other place. Most public records exist in more than one place. The law is written so that public bodies can't jerk people around by sending them somewhere else to get inconvenient public records.

I don’t know how my challenge to the Town’s stonewall policy will go. As comfortable as I feel with the legal grounding for my challenge, I’m not a lawyer. There may be some secret way of reading the words in the law, the Charter and town ordinances differently.

What ever happened to those openness and transparency promises?

Charlestown has a seriously problem with open and transparent government. We've written about that a lot in Progressive Charlestown.

Recently, the Attorney General held his annual conference on open government with training for public agency personnel. One of the teaching examples used at that conference was the recent AG decision in Carney v. Charlestown where the Attorney General upheld Deb Carney’s complaint that the Town Council violated the state open meetings act by conducting a secret ballot during a public meeting to make a political appointment of CCA crony Donna Chambers to the Chariho School Committee.

Dan Slattery's "Australian Ballot" was used as a teaching
tool...on what NOT to do
Councilor Dan Slattery (CCA Party) called it an “Australian Ballot,” as if that made it right. The Attorney General’s office ruled it broke the law and, during this annual conference, held out Slattery’s secret ballot as an example of something public bodies should never do.

The central question for Charlestown residents is whether this type of conduct on behalf of town government is what you want. 

Virtually every candidate for town office has campaigned on the pledge of open and transparent government. 

But it is far from open and transparent when the Town Administrator, Clerk and Solicitor – with the Town Council majority’s tacit blessing – can arbitrarily curb the public's right to know.