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ACLU Sues RI Department of Public Safety Over “Bait and Switch” Procedures in Adopting Regulations

Posted: September 06, 2011|Category: Due Process

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The RI ACLU has today filed suit against the RI Department of Public Safety (DPS), arguing that the agency failed to provide the public an appropriate opportunity to comment on controversial regulations establishing its policies for public access to DPS records. The suit, filed in R.I. Superior Court by RI ACLU volunteer attorney Jennifer Azevedo, argues that the DPS violated a state law known as the Administrative Procedures Act (APA), which is designed to ensure that state executive agencies go through a public rule-making process in adopting policies governing their conduct.

In November 2010, the DPS proposed to adopt regulations establishing its procedures for implementing the state’s Access to Public Records Act. However, at its public hearing on the regulations a month later, DPS announced to those in attendance that a revised set of proposed regulations, made public only the day of the public hearing itself, would be the subject of the hearing. The revised proposal was significantly different than the regulations that had been the purported basis of the public hearing, and for which the ACLU and others, including Common Cause Rhode Island and the Rhode Island Press Association, had prepared testimony. The groups objected to the last-minute change in the proposal, but DPS went ahead with the hearing and ultimately adopted the rules in substantially the same form as they had been provided for the first time at the public hearing.

The same sequence of events occurred this past month. After issuing public notice of proposed revisions to the Access to Public Record Act regulations, DPS once again proposed a new set of amendments at the public hearing itself, leaving the ACLU and other interested groups unable to provide meaningful testimony on the proposal.

The lawsuit argues that DPS’s actions on both occasions violated the APA, which requires state agencies to “afford all interested persons reasonable opportunity to submit data, views, or argument, orally or in writing,” about proposed regulations and to “consider fully all written and oral submissions respecting the proposed rule.” By revising its proposed rules immediately prior to the public hearing, the suit claims, DPS “failed to promulgate its new regulations with proper notice and failed to afford interested persons reasonable opportunity to submit” views about the rules.

The lawsuit seeks a court order declaring the regulations at issue null and void, and ordering the agency to hold a new hearing on the rules that complies with the APA’s notice provisions.

ACLU attorney Azevedo said today: “Under the APA’s framework for the adoption of rules, an agency must issue proposed rules for review and comment thirty days in advance of their adoption. Issuing draft regulations thirty days in advance, only to significantly amend those regulations merely moments before the close of the public comment period, violates not only the letter of the law but its intention as well: to provide members of the public with a reasonable opportunity to review and remark on those proposals.”

RI ACLU executive director Steven Brown added: “The importance of the APA cannot be underestimated. It ensures that the public has an opportunity for input into the rulemaking activities of state agencies. In adopting this law over forty years ago, the General Assembly appropriately recognized that many critical activities of state government are conducted through agencies of the executive branch, and that citizens deserve the ability to have a meaningful opportunity to comment on their policies and procedures. The bait-and-switch approach used by DPS completely undermines the whole point of requiring advance public notice of rule-making activities, and should not be allowed to stand.”

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