Accessing public records, a difficult problem

11/06/09 - The University of Rhode Island's Journalism Day kicked off yesterday morning with a panel of four experts who discussed the problems with accessing public records. Howard Merten, attorney and partner for Partridge Snow and Hahn, opened the presentation titled "Police Records: Privacy v. Right to Know" by discussing how the right to public records first began and the reasons behind it.

Merten explained the Freedom of Information Act's creation, its implications and that Rhode Island was the 49th state to pass such a law.

"I come with a bias because I represent[ed] the press for all these years," Merten said. "[I am] firmly committed to the idea that openness in records is important in our democracy."

There are 23 exceptions in the Rhode Island statute for reasons to withhold information, such as if a victim was a minor or in cases of sexual assault.

Merten addressed three basic problems with the access to public records in Rhode Island. He said the statute itself is flawed and in his perspective about 80 to 90 percent of the battle on public access is fought over two exemptions, the personnel and law enforcement exemptions.

"Rhode Island has, in my estimation, an absolutely horrible personnel exemption," Merten said.

Personnel exemption is when any records identifiable to an individual are exempt such as an employee's salary.

The second problem is the requestors, Merten said.

"I've noticed over the last 20 to 25 years of my practice the requestors have become less vigorous in pursuing these requests," Merten said.

Merten said the third problem is that public officials need to know what records are public and what's not. He said sometimes when requestors ask for a certain record the public official may say it is not public even though it is.

"They just don't know the statute," Merten finished.

Chief of the Open Government Unit at Rhode Island's Attorney General's office Michael Field said documents are made public on a case-by-case basis.

"There isn't some book out there that lists every type of document in existence and next to it says public or not public," Field said.

Field also said the most frequent complaints are more procedural than anything else. He said there is no particular record or subject matter that is requested more often than any other.

Capt. Jeffrey Allen of the South Kingstown police said one of the problems with access to public information is with peoples' different personalities.

"If you have the right people in place you will get the information you want," Allen said.

He said sometimes when the public goes into a police station looking for open records they may run into a dispatcher who is a civilian and does not have police training. Allen said on occasion these people give out "erroneous information."

"For the most part we are pretty open," Allen said.

Investigative reporter for WPRI Channel 12 news, Tim White said inconsistency was the biggest issue facing the access of public information.

"There is a huge problem with departmental policies depending on the police department in how they train their personnel and also the rigmarole in what they make you go through to obtain a record," White said.

White showed the audience a form he filled out for the Bristol Police department to obtain records for a story about the Hells Angels.

"The way to comply with the law and not fill out silly forms like this is to be open and know the law and hand over the arrest reports that are accessible," White said.

He continued, if municipalities wanted to cooperate they would provide the record and if they don't want to cooperate they will translate the record in a way to say no.

White said some municipalities just hope that requestors of these records will just disappear if the municipalities wait the required 10 business-day period on returning information. If this occurs most of the time an appeal is filed through the attorney general's office.

"What [the police department does] affects the public greatly and for that reason deserve a high level of scrutiny," White said. "And when a journalist goes to the window and asks for an arrest record and is denied that, then that is a huge disservice to the public.