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Ruling in Open Records Suit, Judge Orders Governor to Turn Over “Chain of Command” Documents to ACLU

Posted: March 03, 2009|Category: Open Government

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Ruling in an Access to Public Records Act (APRA) lawsuit the R.I. ACLU filed against Governor Donald Carcieri last August, Superior Court Judge Patricia Hurst today ordered the Governor to release certain requested documents to the ACLU, and further ordered that additional records be turned over to her for in camera (private) review for her determination as to whether they too should be released. In doing so, she rejected motions by the Governor’s attorneys to dismiss the ACLU suit, filed by RI ACLU volunteer attorney Kathleen Managhan.

In December 2007, a major snowstorm hit the state when Governor Carcieri was out of the country. Traffic gridlock left some school children stranded on buses for hours. Upon his return, Governor Carcieri announced that Major General Robert Bray, head of the National Guard, would be in charge should similar situations occur in the future. The announcement prompted numerous concerns as to the legal propriety of giving such authority to Bray.

In response, the ACLU filed an open records request, asking the Governor for copies of any documents that, among other things, set out the chain of command for state governance in his absence, described the powers given Maj. Gen. Bray in his absence, and that imposed any limits on those powers. The Governor’s executive counsel, Kernan King, responded by turning over only one document: a news release issued by the Governor that attempted to respond to the questions raised in the media about this controversy. King alleged that the only other records responsive to the ACLU’s request were emails that were exempt from public disclosure because they were “internal documents that were created for internal purposes.”

The ACLU lawsuit noted that, despite the explanation given about “internal” emails, the Governor’s own news release contained a direct quote from an email his office had sent to the Providence Journal. Ruling from the bench today, Judge Hurst ordered release to the ACLU of that email and a follow up email..  The judge also ordered the Governor to turn over to her, within two weeks, the alleged exempt emails so that she can make a determination as to the validity of the Governor’s claims that the records can be lawfully withheld. The judge held off a ruling on the ACLU’s request that a civil fine be imposed against the Governor for his clear violation of the open records law.

RI ACLU executive director Steven Brown today called the judge’s ruling “an important victory for open government. It stands in stark contrast to the Governor’s openly antagonistic views about the public’s right to know.” Last June, the Governor vetoed legislation that would have strengthened the open records law in various respects.

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