PROVIDENCE, R.I. – The Attorney General’s Open Government Unit today issued a finding in response to an Open Meetings Act (OMA) complaint filed by Rhode Island Republican Party chairperson Susan Cienki against the Rhode Island Special Commission on Reapportionment for the Commission’s alleged failure to comply with the OMA.
As background, the General Assembly established the Commission in 2021 to make recommendations for the reapportionment of districts for the Rhode Island House of Representatives and Senate based on the 2020 national census. In the legislation creating the Commission, the Generally Assembly expressly stated that the Commission was subject to the OMA. The Commission, following several public hearings in late 2021 and early 2022 that were open to the public and video recorded, submitted its final apportionment report to the General Assembly in mid-January 2022.
On January 19, 2022, four months into the Commission’s work and after the Commission had already submitted its apportionment report to the General Assembly, the Complainant, Ms. Cienki, filed a complaint with the Attorney General’s Open Government Unit, arguing that the Commission was a public body and therefore subject to the OMA, and that it had violated the OMA during its work in 2021 and 2022. The Complainant sought two forms of relief: 1) production of meeting minutes; and 2) fines for what she contended was willful or knowing conduct in violating the OMA. In response, the Commission argued that it could not lawfully be subject to the OMA, notwithstanding that the General Assembly had expressly provided otherwise in the legislation creating it, based on several constitutional grounds, including separation of powers and speech in debate principles.
As described in the Open Government Unit finding issued today, neither the Complainant nor the Commission have served their cause well. The Complainant finds fault in the Commission’s non-compliance with the OMA over a period of many months, indeed, from the inception of its work, and yet inexplicably waited to file her OMA complaint until after the Commission’s work was finished and submitted to the General Assembly. At the same time, the Commission, rather than contending that it has complied with the OMA, instead argues on constitutional grounds that it cannot be subject to the OMA notwithstanding that the very Act creating it provides that it is. By design or otherwise, the parties have effectively invited this Office to wrestle with novel, complex constitutional questions never decided by the Rhode Island Supreme Court, in a situation where, even assuming an OMA violation has occurred, there are no appropriate and available remedies for such violations because of the Complainant’s own delay. As set forth in the Open Government Unit’s finding, the Attorney General has declined the invitation.
The injunctive relief requested by the Complainant is a demand that the Commission create minutes for meetings that took place months ago. As set forth in the Open Government Unit’s finding, this remedy is not now appropriate for several reasons. Requiring the now-dissolved Commission to retroactively recreate its minutes from meetings that occurred months ago would serve no meaningful purpose, especially where the Commission has already completed its work and where it is undisputed that full video recordings of the meetings are publicly available. Furthermore, as set forth in the Unit’s finding, civil fines for a willful or knowing violation of the OMA also are not appropriate here because the Commission provided evidence of a host of other measures it took to promote the transparency of its proceedings, such as posting notice of its meetings in various places and providing opportunities for public comment.
“From the moment this OMA Complaint was filed, this Office has struggled to understand why it was filed with us so late and sought so little in relief,” said Attorney General Peter F. Neronha. “At the same time, we have been puzzled by the Commission’s late-breaking position that it cannot constitutionally be subject to the OMA, notwithstanding that months before the General Assembly said or at least implied just the opposite in the Commission’s enabling legislation. While this Office is prepared to sort through confounding positions and take on complex OMA issues when there is something meaningful at stake, at bottom, that is not the case here. The Complainant seeks one substantive thing in her Complaint: the preparation of minutes from public meetings held long ago. For us to order the preparation of such minutes at this late date when recordings of the entire meetings are publicly available would do nothing to advance public awareness of the Commission’s work or general principles of transparency. The transparency juice isn’t worth the analytical squeeze; indeed, there is no juice to be had here at all. There is thus no need nor reason for us to do a deep dive into the novel and complex constitutional issues never decided by the Rhode Island Supreme Court. Those issues can await another day, or another forum. The Complainant, like all members of the public, has always had the right to bypass this Office with her OMA Complaint and go directly to the Superior Court. That path remains available to her, should she believe that her arguments will be more convincing there.”