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AG Kilmartin Files Open Government Lawsuits Against Department of Business Regulation and State Properties Committee

The Office of Attorney General filed complaints Friday in Providence County Superior Court alleging open government violations against the Department of Business Regulations (DBR) and the Rhode Island State Properties Committee.

In the suit filed against DBR, Attorney General Kilmartin cites DBR for a reckless violation of the Access to Public Records Act (APRA) when the agency failed to respond to an APRA request filed by Mr. Mark Greenblatt on behalf of Scripps News on July 10, 2013.

In the suit filed against the State Properties Committee, Attorney General Kilmartin cites the State Properties Committee for a willful or knowing violation of the Rhode Island Open Meetings Act (OMA) for failing to timely file minutes for its August 13, 2013, September 26, 2013, October 8, 2013, November 5, 2013, and November 19, 2013 meetings on the Secretary of State's website.

DBR In a previously released finding, Scripps News v. Rhode Island Department of Business Regulations, PR 14-07, the Office of Attorney General found that DBR violated the APRA when it failed to timely respond to the July 10, 2013 APRA request.

Under the APRA, a public body has 10 business days to respond to a request for documents. R.I. Gen. Laws § 38-2-7. If the public body denies the request, a written response detailing the specific reasons for the denial shall be sent within those 10 business days to the person or entity making the request. R.I. Gen. Laws § 38-2-7(a). If no response is sent within 10 business days, the lack of response will be deemed a denial. R.I. Gen. Laws § 38-2-7(b). If, for good cause, the public body cannot comply with a records request within 10 business days, then the public body may extend the period an additional 20 business days, for a total of 30 business days. R.I. Gen. Laws §§ 38-2-7(a) and 38-2-3(e).

The investigation into the APRA complaint revealed that DBR failed to respond within 10 business days to the July 10, 2013 APRA request. The investigation further found that DBR responded to the request on September 19, 2013, almost two months after the initial request, and only after Mr. Greenblatt called DBR on September 12, 2013 to inquire in to the status of the request. Additionally, the investigation revealed that DBR officials had discussed the APRA request while pending, yet failed to timely respond.

As noted in the supplemental finding, PR 14-07B, the Office of Attorney General has determined that based on the evidence, DBR's actions constituted a "reckless" violation of APRA, subjecting the agency to monetary fines. The Office rejects the argument made by DBR that "failure to respond was an inadvertent mistake" that happened "because of the press and other business of an extremely busy governmental agency" and the "inadvertent delay…occasioned no harm other than the delay itself."

This marks the first time the Office of Attorney General has filed a lawsuit citing a "reckless" violation of APRA. In 2012, the General Assembly amended APRA to lower the threshold where a public body may face monetary fines. Effective September 2012, a public body found to be in "reckless violation" may face a maximum civil fine of $1,000 per violation, as compared to the "willful or knowing violation," which is subject to a maximum civil fine of $2,000 per violation.

State Properties Committee The lawsuit is the result of a complaint filed with the Office of Attorney General by Kenneth J. Block earlier this year. In a previous finding, Block v. Rhode Island State Properties Committee, OM 14-16, the Office of Attorney General found that the State Properties Committee violated OMA for failure to timely post the minutes of several meetings as prescribed by RIGL §§ 42-46-7(d).

The OMA requires that all public bodies within the executive branch of state government and all state and public and quasi-public boards, agencies and corporations shall keep official and/or approved minutes of all meetings of the body and shall file a copy of the minutes of all open meetings with the Secretary of State for inspection by the public within 35 days of the meeting, or by the date of the next regularly scheduled meeting, whichever is earlier.

The Office of Attorney General investigated the matter further to determine if the State Properties Committee committed a knowing or willful violation. In a supplemental finding, OM 14-16B, the Office of Attorney General noted that by its own admission, the State Properties Committee was "at all times material hereto…aware of its statutory obligation to file meeting minutes with the Secretary of State."

The Committee's candid admission evinces that it was aware it was statutorily obligated to file its meeting minutes on the Secretary of State's website in a timely manner and the Committee in fact had timely filed other meeting minutes on the website in accordance with OMA. The Office of Attorney General disagreed with the Committee's belief that its failure to comply with OMA was a negligent act, rather than willful or knowing.

Based on the substantive response and affidavits by the State Properties Committee, the Office determined that the Committee did commit knowing or willful violations of the OMA. The maximum penalty under the OMA is $5,000 for each knowing or willful violation.

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