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Neronha rules McKee must hand over e-mail alleging officials’ misconduct during business trip

The attorney general’s office concludes that any privacy interest is outweighed by the “very substantial public interest” in an e-mail regarding a business trip by top state officials to Philadelphia in March

Attorney General Peter F. Neronha gave a victory speech after winning a second term, during an election-night gathering of Rhode Island Democratic candidates and supporters on Nov. 8, 2022, in Providence.Mark Stockwell/Associated Press

PROVIDENCE — Attorney General Peter F. Neronha’s office on Wednesday ruled that Governor Daniel J. McKee must hand over an e-mail alleging misconduct by two top state officials during a business trip to Philadelphia in March.

McKee’s office has kept the e-mail secret, arguing that it is an investigatory record and that disclosure would be an unwarranted invasion of privacy.

But Neronha’s office concluded that any privacy interest “is outweighed by a very substantial public interest,” saying the governor’s office violated the Access to Public Records Act by withholding the e-mail, and that the document must be disclosed.

WPRI-Channel 12 has reported that the e-mail alleges unprofessional conduct during a March 10 trip to Philadelphia taken by James E. Thorsen, then director of the state Department of Administration, and David Patten, director of the state Division of Capital Asset Management and Maintenance. They were visiting Scout Ltd., a company seeking to redevelop the Cranston Street Armory.

The attorney general gave McKee five business days to release the e-mail.

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McKee’s press secretary, Olivia DaRocha, said, “Our office is currently reviewing the Attorney General’s decision. Separately, I can confirm for you that the incident involving Mr. Patten was referred by our office to the State Police in mid-April.”

Patten, who makes $174,490 a year, went out on medical leave on March 13, three days after the trip to Philadelphia, and he was placed on paid administrative leave, effective May 30, an administration spokeswoman said Wednesday.

Thorsen, who had already submitted his resignation before going to Philadelphia, stepped down on April 28 to return to the US Treasury Department.

WPRI and The Providence Journal filed complaints with the attorney general’s office when McKee’s office refused to release the e-mail.

After reviewing the e-mail, state prosecutors concluded the allegations are serious. “Although the individuals named in the email have some privacy interest, the fact that the email contains specific allegations of official misconduct by senior members of government diminishes the privacy interest, at least to some extent,” Assistant Attorney General Katherine Sadeck wrote. “Moreover, the nature of the alleged misconduct in the case before us is serious, not de minimis or trivial.”

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In attempting to keep the document secret, McKee’s office cited a public records law exemption for investigatory records.

But Sadeck noted that the state Superior Court has held that the “so-called ‘investigatory exemption’ exempts records created or generated by an investigating agency. That is all it does. It does not serve as a magic wand turning open-access records into shielded records merely because those records are also being used in the course of an investigation.”

In this case, the e-mail was not created or generated by an investigating agency, Sadeck said. Rather, it was sent by a third party that led the administration to launch an investigation, she said.

McKee’s office also argued that the e-mail is a personnel record, citing precedent that a government employee has a privacy interest “in his or her employment history and record of job performance, not only because of the embarrassment from possible negative disclosures, but also because of the compilation of personal information found in such records.”

Sadeck agreed that, “Disclosure of the email could be very damaging to the reputation of the employees who are the subject of the email.”

But, she wrote, “The public has an interest in a document that ‘sheds light’ on how government operates.” And in this case, the e-mail concerns allegations of misconduct involving “extremely senior government officials who, at the time of the site visit, each respectively held the highest leadership position in important departments of state government,” she said.

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The attorney general’s office concludes that McKee’s violation of the public records laws was not “willful and knowing or reckless.”

“Although we have determined that the APRA requires disclosure of the withheld email, the record indicates that the governor’s office applied the balancing test in good faith,” Sadeck wrote, “and we confirm that there is a privacy interest in the withheld record, albeit an interest that we find outweighed by the public interest.”

Last week, House Speaker K. Joseph Shekarchi said the state budget won’t include any funding for the proposed redevelopment of the Cranston Street Armory.

For decades, the urban castle that is the Cranston Street Armory has largely sat vacant, held by the state, and plans to redevelop the historic site were long-sought-after dreams of nearby residents and local businesses. After years of back-and-forth with historic preservation committees, community members, and an outside development firm, the state released the final report detailing the plans for redevelopment from Philadelphia-based firm Scout Ltd. — and its $56.8 million price tag — earlier this year. It included an indoor soccer complex, state offices, and a small business incubator.

Scout’s employees claimed that the redevelopment of the 165,000-square-foot facility at 340 Cranston St. would need $36.6 million from the state’s capital budget, spread out over three years, up to $20 million in American Rescue Plan Act funds allocated to the state, and up to $13 million in state and federal tax credit financing. But the budget, which goes to the House floor Friday, contains no funding for that work.

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Edward Fitzpatrick can be reached at edward.fitzpatrick@globe.com. Follow him @FitzProv.