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RI Department of Public Safety Withdraws Challenged Open Records Regulations

Posted: October 20, 2011|Category: Open Government

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The Rhode Island ACLU announced today that the state Department of Public Safety (DPS) is withdrawing recently-proposed and controversial regulations, relating to public access to police records, which the ACLU sued over last month.  RI ACLU executive director Steven Brown called the withdrawal of the regulations “an important, if temporary, victory for the public’s right to know.”  The ACLU’s suit argued that the agency failed to provide the public an appropriate opportunity to comment on the open records regulations.

In August, after issuing public notice of proposed revisions to its Access to Public Record Act regulations, DPS scheduled a public hearing on them.  However, at the hearing, DPS instead announced that a revised set of proposed regulations, made public only that day, would be the subject of the hearing.  This left the ACLU and other interested groups, including Common Cause Rhode Island and the Rhode Island Press Association, unable to provide meaningful testimony on the proposal.  Although the groups objected to the last-minute changes, DPS went ahead with the hearing and later advised the ACLU it was rejecting the objections that had been made to the rules.

This prompted the ACLU’s lawsuit.  However, in filing an answer to the ACLU’s complaint this week, the state has indicated that the challenged rules would not be filed with the Secretary of State for adoption; instead, a further review of the regulations will be taking place.  If adopted, the regulations would have further expanded the agency’s power to withhold arrest reports and other documents from public scrutiny.

The suit, filed in R.I. Superior Court by RI ACLU volunteer attorney Jennifer Azevedo, claimed that the agency’s “bait and switch” approach violated the Administrative Procedures Act (APA), which is designed to ensure that state executive agencies go through a meaningful public rule-making process in adopting policies governing their conduct.  By revising its proposal immediately prior to the public hearing, the suit claimed, DPS “failed to promulgate its new regulations with proper notice and failed to afford interested persons reasonable opportunity” to comment on the rules.  The lawsuit sought a court order declaring the regulations null and void, and ordering the agency to hold a new hearing in compliance with the APA’s notice provisions.

As a result of the state’s answer to the complaint and its decision not to formally adopt the rules, the ACLU plans to hold the suit in abeyance and await further rule-making activities by DPS.

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