Google settlement case prompts concerns over interpretation of public-records act

Local civil libertarians have asked the Rhode Island Supreme Court to overturn a lower court decision they say threatens to keep any state or municipal document labeled a “memorandum” concealed from public view.

PROVIDENCE — Local civil libertarians have asked the state’s highest court to overturn a lower-court decision they say threatens to keep any state or municipal document labeled a “memorandum” concealed from public view.

The case evolved out of a request last year by former state Rep. Patricia Morgan for documents on how the state attorney general’s office had spent the $59 million it received in Google settlement money.

Rhode Island law-enforcement agencies split a total of $230 million in a court settlement for their role in exposing a shady marketing technique that allowed users of Google AdWords to illegally sell non-FDA-approved prescription drugs to American consumers.

Morgan’s request through the state’s Access to Public Records Act [APRA] was “stymied by hundreds of questionable redactions” by former Attorney General Peter F. Kilmartin, says the American Civil Liberties Union of Rhode Island, including the extraordinary blacking out of an entire memo dealing with the innocuous purchase of lapel pins.

Kilmartin’s office defended its redactions, citing a provision in the public records act that includes “memoranda” as the kind of “preliminary” documents allowed to be kept secret.

The office also charged Morgan $3,700 for the first batch of documents she did receive and was about to charge another $4,000 in fees for a second batch until a Superior Court judge stepped in and waived the fee, citing the “inherent public interest in the records.”

However, Judge Melissa Long declined the ACLU’s call to reject the attorney general’s explanation for the redactions.

In filing its appeal to the state Supreme Court on Tuesday, the ACLU said the Morgan case is “one of the most significant challenges” to the public’s right to know how its government functions since passage of the open records act, in 1979.

“To the best of our knowledge, until this case, no government agency had ever interpreted this APRA exemption in the extraordinary way the attorney general has done,” said Steven Brown, executive director of the ACLU of Rhode Island.

Government business is routinely conducted by memoranda, Brown said, and “[t]he AG’s position that every memorandum generated by state and municipal agencies can be kept secret unless the agency, out of pure largesse, agrees to release it is a direct assault on transparency in, and the very concept of, open government.”

Linda Lotridge Levin, president of ACCESS/RI, a coalition of nonprofit organizations working to keep government open to its citizens, said: “Holding state and municipal agencies accountable for their use of taxpayer money is fundamental. It is especially important that the office of the state’s attorney general be transparent because it is the legal caretaker of public records under the Access to Public Records Act.”

Newly elected Attorney General Peter F. Neronha, Rhode Island’s former U.S. Attorney, who took office this month, issued a statement Tuesday, making it clear his office stood in sharp contrast with his predecessor on the issue.

“This administration does not take the position that memoranda, simply because they are memoranda, may be withheld from disclosure under APRA,” Neronha said through a spokeswoman.

“We will review the appeal and respond to the substance of that appeal in the Supreme Court,” Neronha said.


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