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AG sues city for access to records

October 17, 2013

WOONSOCKET — State Attorney General Peter Kilmartin has filed a lawsuit against the city for violating the Access to Open Records Act over a lawyer’s 2012 request for paperwork associated with the proposed water treatment plant.

The lawsuit accuses the city of two violations stemming from lawyer Michael Kelly’s December 2012 request for documents. One alleges that the city failed to answer the request within the minimum time frame allowed by law, the other that the city didn’t provide one specific document – the sales agreement for land on which the plant is to be built – at all.

Amy Kempe, spokeswoman for the attorney general, said the suit comes after state prosecutors gave the city a chance to explain why the violations were not “knowing and willful” – the benchmark for proceeding with litigation. The city said the delay was basically the result of budget constraints and personnel shortages, which prosecutors found unacceptable.

But Kempe said the decision also took into account the city’s recent history of noncompliance with the APRA. The latest incident is practically a carbon copy of a 2009 violation of the APRA over which the attorney general’s office sued the city. In that case, which involved city records sought by the Woonsocket Fire Fighters Association, the city also cited staff cuts as the cause of its failure to comply with the law.

“We recognize that many cities and towns are struggling financially,” Kilmartin said in a statement. “But that cannot be held out as an excuse for failing to comply with the law. Government has an obligation to be transparent and responsive. In this instance, as in the past, the City of Woonsocket failed at both.”

The attorney general released portions of a letter City Solicitor Joseph Carroll sent to state prosecutor Maria Corvese in attempts to avert the litigation. In it, Carroll said, “In plain terms, the City is short-staffed...The Water Treatment Plant Advisory Committee has been defunct for nearly two years, was made up of citizens who were not City employees and existed mainly before the current Public Works Director was employed by the City. Under these circumstances, locating some of the documents, even the person who might have them, was a challenge.”

“There was no animus toward Mr. Kelly causing a deliberate delay,” Carroll said.

While the solicitor concluded that the failure to comply “was the result of neglect,” he went on to say that neglect “does not rise to the level of reckless conduct, and certainly there has been no demonstration of any type of evidence which would lead to a finding of willful or knowing violation.”

But Corvese made it plain that the city’s track record weighed into the decision to proceed with litigation.

“On Dec. 28, 2009, this Department filed a lawsuit against the City for almost the exact same reason,” she wrote in a letter to Carroll. The city paid a $1,000 fine to settle that case.

Based on the history, Corvese said the city should have been familiar with the law and how prosecutors would react to a reiteration of an excuse that had fallen flat in the past.

“At the very least, it shows that the City was put on notice that being short-staffed is not enough to overcome the knowing and willful standard,” she said. “We refuse to allow public bodies to justify their non-compliance with the APRA by simply asserting that they are short-staffed without any other reasonable, good-faith explanation and evidence.”

The APRA gives government agencies 10 days to satisfy a request for public records, with a maximum 20-day extension.

Kelly first asked for the documents on Dec. 21, 2012. He filed a formal complaint with the attorney general on March 15, and finally received a partial response on April 2. To date, prosecutors say he has never received a complete response to what has been dubbed “Request No. 8,” which asked for “any and all documents, correspondence, communications, including e-mails, including but not limited to a purchase agreement, that relate to the acquisition of land for the new water treatment plant.”

Each of the APRA violations is punishable by a civil fine of up to $2,000.

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