Public records balancing test weighs against Rhode Island paper in bid for police files
The state attorney general's office denied a request for Giglio material on a retired officer, alleging the case had no bearing on the public interest.
Rhode Island State Police have denied a request from The Providence Journal, the state’s largest newspaper, for documents related to alleged misconduct by a retired state police officer.
The paper filed an Access to Public Records Act (APRA) request for Giglio material on retired state police Lieutenant Colonel Joseph Philbin. In its 1972 ruling in Giglio v. United States, the Supreme Court found that due process requires prosecution in a criminal case to disclose evidence favorable to the defense. In the case, the prosecution failed to inform the jury that a witness had agreed to testify in exchange for immunity from prosecution.
More broadly, Giglio material is understood as information that could cast doubt on testimony from witnesses from law enforcement.
Philbin, who retired in 2019 as the third-highest ranking officer in the state police, has been accused of being involved in several incidences of misconduct, including the alleged 2014 assault of a suspect in police custody.
State police officer Gerald M. McKinney allegedly hit a suspect who became belligerent during questioning. McKinney allegedly reported the incident to Philbin, his supervisor, but video of the incident disappeared.
The incident was investigated by Connecticut State Police, at the request of new leadership at the Rhode Island State Police. But the findings of that investigation are under seal in a civil lawsuit against the state police, which has denied The Providence Journal’s APRA request.
In 2020, Philbin was also a co-defendent in a lawsuit brought by state trooper lieutenant Michael Casey related to allegations he had been coerced into altering the results of background check for a new recruit to the force.
Philbin was also implicated in allegations made by former state trooper Jamie Donnelly-Taylor, fired in 2019 for assaulting a suspect in a jail cell. Donnelly-Taylor wrote to state legislators, alleging he had been improperly fired, and also alleging a recording between two state troopers detailed Philbin punching a man outside an East Greenwich bar. The incident was investigated by the state police and Philbin was cleared of wrongdoing.
The state attorney general’s office has acknowledged that Giglio material on Philbin was disclosed in 2008 as part of a case, but has declined to provide specifics. As the Providence Journal reports, Assistant Attorney General Michael Field wrote in a letter to the paper that “such records were not considered a public record under APRA and that, as such, the office was under no obligation to produce them.”
Field has also argued that releasing the document would do nothing to advance the public interest, a common argument made in favor of disclosure of public records through freedom of access laws and one made by The Providence Journal in this instance.
At issue is not just what records are covered by the state’s freedom of access law, but by a 2012 amendment to that law requiring government to apply a balancing test when assessing records requests that contain personally identifiable information.
Under APRA, a public record is defined as any document, paper, letter, map, book, tape, photograph, film, sound recording, magnetic or other tape, electronic data processing record, computer stored data, or other form of material “made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.”
Exempted from the law are various records that contain personal information, including doctor-patient records, attorney-client records, records with medical information, and records that contain personnel information such as employment contracts or names and addresses of public employees.
APRA also exempts records maintained by law enforcement agencies “for criminal law enforcement and all records relating to the detection and investigation of crime.” They are deemed not public only insofar as their disclosure might reasonably interfere with an investigation or trial, would take away the right to a fair trial, could constitute an invasion of privacy, could disclose a confidential source, could disclose police techniques or guidelines for investigations or prosecutions, or could endanger the life or safety of any individual.
There’s nothing statutory in APRA that would automatically make Giglio material related to fourteen-year-old cases involving a retired officers not subject to public disclosure.
Enter the 2012 amendment to the law that added a balancing test to personnel records. Prior to 2012, the statute exempted most personnel records and records containing identifiable information from disclosure. The 2012 amendment clarified that those records were only exempt from disclosure if doing so would result in “a clearly unwarranted invasion of personal privacy.”
The amendment does potentially allow more records to be disclosed under the law, but it also gives public access officers—agency officials in charge of reviewing and complying with APRA requests- more leeway to determine what records fall under that exemption.
In the case of the Rhode Island State Police, advocacy groups, such as the Rhode Island American Civil Liberties Union (ACLU) and Common Cause Rhode Island, have noted that the attorney general’s office is both the chief law enforcement officer and responsible for enforcing public records law.
“This structural conflict of interest has historically made it very difficult to get law enforcement records in Rhode Island.” John Marion, executive director of Common Cause Rhode Island, told The Providence Journal.
Marion also noted that, while the case involving the Giglio material on Philbin may be old, and Philbin may be retired—factors the attorney general’s office has decided weigh against the case having any public interest—Philbin is still employed by the state government, now working as a security specialist for the Rhode Island Public Transit Authority.
Read The Providence Journal’s full account of the story here.