On APRA, R.I. attorney general tells public bodies: Accept the facts, not just the fax

In an advisory opinion, Attorney General Peter Neronha put those who handle public records requests on notice, saying they may not restrict APRA requests to methods that are not readily accessible to public

Rhode Island Attorney General Peter F. Neronha.Lane Turner/Globe Staff

PROVIDENCE — If you are only accepting public records requests via fax, you are doing it wrong.

That was the main point that Attorney General Peter F. Neronha made Wednesday in issuing an advisory opinion about the Access to Public Records Act that aims to “put public bodies on notice of their duty to make the APRA process accessible to members of the public.”

Neronha did not issue the advisory opinion in response to a specific request, spokesman Brian Hodge said. Rather, Neronha said, his office occasionally issues advisory opinions on public records matters.

“This office is aware that members of the public are concerned about their ability to submit APRA requests to public bodies, especially concerning restrictions that some public bodies impose regarding how APRA requests may be submitted,” Neronha wrote. “This advisory opinion is intended to provide additional clarity regarding the APRA’s requirements for accepting public records requests.”

That state law requires public bodies to ensure that members of the public can make public records “without undue burden, delay, or cost,” the attorney general noted. And a public body is violating the law if its procedures for requesting records aren’t “readily accessible” to the public, he said.

“For instance, only accepting records requests via fax would violate the APRA,” Neronha said. “Moreover, in the year 2023, when the use of digital technology including email is prolific and pervasive, there is no reason for public bodies to not provide in their procedures that they will accept APRA requests submitted by email and/or using an electronic portal.”

Using email or an electronic portal to accept records requests eliminates unnecessary delays and increases access, and public bodies in Rhode Island should ensure either or both options are available, he said.

“Doing so conforms with the purpose of the APRA and promotes the important principles behind the APRA, including increased transparency and government accountability,” Neronha wrote.

Last week, Neronha had raised the issue on WPRI-Channel 12′s Newsmakers, saying public bodies often cite a ruling from his office under a former administration that requires APRA requests only to be made by fax. But he said if anyone challenged that requirement today, “we would rule otherwise.”

John M. Marion, executive director of Common Cause Rhode Island, said that if the attorney general issued the opinion without being asked, “that’s being proactive about policing bad behavior by public bodies.”

“The attorney general’s opinion clarifies that the government must accept APRA requests by email and can’t require the public to jump through hoops such as submitting records requests by fax machine,” Marion said. “That makes all the sense in the world in 2023 when few, if any, people still use fax machines but email is ubiquitous.”

Neronha is weighing on public records as the General Assembly considers legislation that would update the Access to Public Records Act for the first time in a decade.

Senator Louis P. DiPalma, a Middletown Democrat who chairs the Senate Finance Committee, and Representative Joseph J. Solomon Jr., a Warwick Democrat who chairs the House Corporations Committee, introduced the legislation, saying the changes are needed to strengthen access to public records and to respond to new technology.

But Governor Daniel J. McKee’s office is among those objecting to proposed changes in the bill. The governor’s executive counsel, Claire Richards, wrote in opposition to proposed increases in fines for “knowing and willful” violations of the law and to a provision that would ensure public access to any subpoena “issued by a governmental entity to a public body or a public official regarding official business.”

Also, the Rhode Island State Police objected to a provision stating that police internal affairs reports shall be public records and to a provision that would require the release of body-worn camera recordings within 30 days for police “use of force” incidents.

But the bill is backed by groups that advocate for open government, including the League of Women Voters of Rhode Island, Common Cause Rhode Island, and the American Civil Liberties Union of Rhode Island.

Neronha is not taking a stand on the bill.

“The attorney general is committed to ensuring that government acts in a manner that is open and transparent — in accordance with the law, while noting as we often do, that the law sets a floor, not a ceiling,” Hodge said. “As the primary enforcer of our state’s open government laws, the office serves a quasi-judicial function, and in doing so we interpret the open government laws enacted by the General Assembly. Out of respect for that quasi-judicial function, we often do not weigh in on open government legislation, and are not presently taking a position on this legislation.