AG should produce public records

I have just filed a lawsuit against Rhode Island Attorney General Peter Kilmartin on behalf of two non-profit organizations, the Energy & Environment Legal Institute and the Free Market Environmental Law Clinic. The lawsuit asks the court to order Kilmartin's office to release documents that it withheld in violation of the state's Access to Public Records Act.

The lawsuit stems from Kilmartin's recent decision to join a small group of other state attorneys general who think law enforcement should take sides in scientific debates. In March 2016, the group announced its members' collective "vow" to use their public offices "to defend climate change progress made under President Obama" and "push the next President for even more aggressive action."

Following this announcement, legal experts and civil liberty advocates on both the left and right criticized the idea that prosecutors should enforce any alleged scientific consensus: such efforts threaten academic debate and stifle free speech.

 Rhode Islanders should not be surprised that Attorney General Kilmartin is once again on the wrong side of a free speech conflict. Just this past legislative session, Kilmartin — the state's chief law enforcement officer — authored two bills that failed because they impinged on free speech. His so-called "cyber-bullying bill" faced harsh criticism from free speech proponents and withered on the legislative vine. Another bill he authored earned the dubious honor of Gov. Gina Raimondo's first ever veto. Governor Raimondo concluded that Kilmartin's bill was "unconstitutional and won't stand up to scrutiny in the courts."

 Kilmartin's decision to pledge our state's resources to this venture led Congress to inquire into his activities. On May 18, members of Congress sent Kilmartin's office a written request for documents showing any communications Kilmartin's office had with certain special interest groups. These well-funded groups have planned for years to enlist state law enforcement in their ideological battles.

Members of Congress requested documents because Kilmartin's "office — funded with taxpayer dollars — is using legal actions … in close coordination with special interest groups." Kilmartin was warned that his actions "call into question the integrity of your office" and "may rise to the level of an abuse of prosecutorial discretion."

 My clients, with the same goal of shedding light on behind-the-scenes agreements among state law enforcement agencies and special interest groups, had also sent public records requests to the Kilmartin's office.

 In response to my clients' request, Kilmartin did not need to produce his own correspondence. Rhode Island's public records law — for no good reason at all — exempts "correspondence of or to elected officials." This gap in the public's right to a transparent government is egregious and unusual in the United States. Kilmartin's office did disclose some records, but withheld important communications between his subordinates and the other state attorney general offices. Kilmartin's office claimed that these communications with other states, many related to media strategy, are protected by the attorney-client privilege. Who does our attorney general believe he works for?

 After the lawsuit was filed, Kilmartin's office quickly issued a statement insisting that my clients' lawsuit is "politically motivated" and speculating that it was brought by "climate-change deniers, big oil, and those they convince to do their bidding." Although Kilmartin's conspiracy theory misses the mark, he is partially correct: the public’s right to a transparent government is an unabashedly political right that this lawsuit aims to vindicate.

 Will Wray Jr. is counsel in the case against Attorney General Peter Kilmartin. He is president of the Rhode Island Lawyers’ Chapter of the Federalist Society, and a civil litigator.