Principle or Personal?
The Rhode Island Board of Elections has spent more than $12,000 over the past 10 months defending its decision to charge $410 to fulfill a public-records request. The board’s denial of a request to waive the fee has morphed into a first-of-its-kind lawsuit to reach Superior Court. This week, Jim Hummel takes a closer look at the issue and finds out that the meter is still running.
In late 2017 the Rhode Island Board of Elections received a request for public records.
It came from Ken Block, a former Republican candidate for governor and chairman of the nonprofit group he formed in 2015 called Watchdog RI.
Block: “I was looking deeply at different sets of data dealing with elections in Rhode Island. And and one of the things that I had discovered as time went on is Rhode Island’s adherence to federal election law in terms of registering voters and what kinds of documentation those voters had to provide to register, what the state was doing wasn’t in line with federal law.”
So he asked for emails the state board had sent to local boards of canvassers giving them direction on how to run elections, dating to 2003. Block, who owns a software engineering company, was surprised when the staff told him there would be a significant charge for the request.
Block: “The Board of Elections came back to me and said, sure we can get that for you, but it will cost $600. I said ‘$600 for emails?’ And they said, yes, that’s what we believe it will cost.”
That set off a chain of events that eventually led to Superior Court, where a lawsuit against the board by Watchdog filed 10 months ago has resulted in a cost to taxpayers of thousands of dollars in legal fees. How many thousands?
The latest tally by the Board of Elections is $12,323 for 72.45 hours of work by its legal counsel Raymond Marcoccio.
And the meter is still running.
On one side is Block, who is no stranger at the Elections Board going back a decade when he trying to form The Moderate Party. He has made numerous records requests and testified on various issues since then.
On the other side, the board and its vice chairman Stephen Erickson, a retired District Court judge who has been on the board for four years.
The one thing they agree on: time spent on the case has been a waste of taxpayer money. But they point the finger of blame at each other.
Erickson: “We gave him the information about how much it would cost. He agreed to pay the cost. Then, after he’s gotten the information, he asked for a fee waiver. He’s asking for special treatment.”
Erickson tells The Hummel Report, the board was simply following an open records policy it had adopted in the fall of 2017, right before Block’s request came in.
Erickson: “It’s important to follow the rules. We follow the rules, I think everybody should follow the rules.”
At issue is whether Block and his government watchdog group are entitled to have what eventually turned out to be a $410 fee for the records waived.
Block: “Rhode Island’s open records law has a provision in it which says if the request is made in the public interest that the fees can be waived. Once they produced the records for me and after I paid them the 50 percent down payment they asked for the rest of it and I said well I’d like to formally request that you waive these fees.”
At a meeting on Jan. 10, 2018 the board directed Block to be sworn in. He declined and at one point board member David Sholes made a motion to waive the fees.
Erickson jumped in calling Block’s request more historical research than a records request, saying it was consuming time of a limited elections board staff. He said it was Ken Block making the request and not his nonprofit group Watchdog, even though the down payment check came from a WatchDog RI account.
Erickson: “It’s not an interest group, it’s not like Common Cause and the ACLU or the press, it’s just an individual that has a lot of questions.”
Erickson noted the staff had spent more than 100 hours helping Block with requests in the past, at no cost.
Erickson: “The question is should we keep spending tens and dozens of hours answering some questions, that as far as I can see, are fairly basic on Election Law. Or should we focus on doing the job of running the election.”
Block tried to interject, which drew this response from Erickson: Here we go…Here we go…Here we go…so predictable.”
The board agreed to postpone the meeting two weeks, allowing Block to return with his attorney Lisa Holley. After a 25-minute back and forth, it voted to deny waiving the fee. Commissioner Sholes was the lone dissenting vote.
Erickson: “Clearly there’s a difference between a person’s individual capacity and corporate capacity. That’s Law 101, that I think every business person understands. Every time John Marion, and every time Steve Brown comes into this room they say, John Marion representing Common Cause. Steve Brown, representing the ACLU. They appear here in their representative capacity as an agent for the organization that they are employed by.”
Block: “The Board of Elections Is aggressively throwing everything they have at the wall to see what will stick. And one of the things they claimed was: well we were interacting with Ken Block but you filed this lawsuit to waive the fees as Watchdog Ri - but the check that was written to pay for the open records request was a Watchdog check. It’s an open record, no one is disputing the fact that the records that I asked for qualify as open records. So what this dispute is really about is - should a member of the public be charged for information that is publicly-owned information in the first place.”
Hummel: “Is it worth spending $12,000 to fight a $400 waiver?”
Erickson: “ When somebody sues you it’s like a declaration of war. The other side doesn’t get to say: No thanks. If you’re sued, you have to respond. The question isn’t why are we defending this suit, the question is why did he bring it in the first place over such a trivial amount of money? Why is he wasting taxpayers’ dollars?”
Hummel: “Do you think this information is not in the public interest that he’s asked for?”
Erickson: “What he’s asked for, just so we’re clear, is 14 years of historical research about how past boards interacted using past law, using old regulations with former boards of canvassers, about the operation of elections a decade ago. Now that’s interesting historically, but does that impact in any way how we’re doing business now with this board under these regulations, under the current law? If he thinks that we’re not interacting correctly with the local boards of canvassers, that’s his opinion, but the evidence doesn’t’ show that.”
Erickson: “And now what the Board of Elections is doing is they’re spending I don’t even know how much money to defend and justify and try to deny the request for the fee waiver. This is about the board trying to say that even though it’s the public’s data, we have a right - and I guess maybe a duty - to charge the public for this information and I think they’re plain wrong about that.:
Block also takes issue with how the elections staff produced the records, and the time it took to do so.
Block: “They went ahead and produced 192 emails, which they printed out on paper, then scanned into a computer, then emailed to me.”
That’s what ended up being $400 in cost.
Block: “Some really bizarre thought -process, where you take an already electronic record, you commit it to paper, then you scan it back into the computer to send to me. No member of the public should be disadvantaged and have to pay for the technical ineptitude of a state employee”
Hummel: “And you think that’s what this was?:
Block: “In the best case that’s what this was.”
Hummel: “Taking an electronic document, then having to scan it and a lot of extra work.”
Erickson: “That’s what I do.”
Hummel: “Is that the most efficient way?”
Erickson: “I don’t care whether it’s the most efficient way, it’s the most effective way. And frankly, if he’d wanted to be our executive director, he could have applied for the job.”
Block’s attorney, Lisa Holley - a former chairwoman of the state Parole Board and legal counsel for the Rhode Island State Police - said this case has become personal.
Hummel: “She said if it had not been Ken Block, this would have been a totally different case.”
Erickson: “Absolutely false. Absolutely false, I’m shocked she would say that. I’m disappointed that she would say that. I’m disappointed in her for saying that.”
Hummel: “You don’t think any of this is personal?:
Erickson: “Absolutely not. What this is about is the job we’re doing at the Board of Elections and the changes we’re making it. I was a judge for 20 years, people came in and rattled my cage every single day of the week, I dealt with many, many, many people over the years and every person gets treated equally, every person gets treated fairly. And what you think about somebody personally is totally irrelevant and that’s been my reputation, that’s been my standard.”
Block: “The one thing I hope is not happening is that the board is choosing to use these fees as a way of tamping down inquiry. I think our open records laws are a little bit broken here. The idea that you charge the public for data that is the public’s in the first place is a little bit odd. We run a real danger of misuse of this open records tool and the fee in particular, to use it as a disincentive to ask the important questions that the public has every right to ask our elected officials and our appointed officials about how they do the public’s business.”
The two sides will be back in court on April 10th.
In Providence, Jim Hummel for The Hummel Report.