Good-government advocates fault state's refusal to release RISP misconduct records

PROVIDENCE — Attorney General Peter F. Neronha’s office has denied an Access to Public Records request for documents detailing a former Rhode Island State Police lieutenant colonel’s alleged lack of candor and dishonesty, finding that the now-retired officer’s privacy outweighs the public’s interest.

The office denied a request made by The Providence Journal under the state Access to Public Records Act for so-called Giglio material for retired state police Lt. Col. Joseph Philbin. The term Giglio emanates from a seminal U.S. Supreme Court case imposing a duty on prosecutors to disclose to defense in a criminal case any information that could be used to impeach a law-enforcement witness, cast doubt upon his or her accuracy, or illuminate biases.

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Neronha’s office acknowledged that the office had made such a disclosure to the defense regarding Philbin in a 2008 case, but the office did not provide specifics, saying the details were not contained in the case file.

Assistant Attorney General Michael Field said in a letter to The Journal that such records were not considered a public record under APRA and that, as such, the office was under no obligation to produce them.

“'FOIA [the Freedom of Information Act] is not a discovery statute,’” Field said, quoting court precedent.

The Journal had argued that disclosure of the records would be in the public’s interest as it pertains to possible misdeeds or bias within the ranks of the Rhode Island State Police.

“The document at issue relates to a single, now-retired, officer concerning a matter that happened more than fourteen (14) years ago, not the agency. As such, disclosure of the document would do nothing to advance the public interest you reference,” Field said.

Philbin retired in 2019 after 25 years of service and now works as a security specialist for the Rhode Island Public Transit Authority.

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Civil rights and open-government advocates rejected the state’s reasoning in comments this week.

“I find very troubling the Attorney General's conclusion that the privacy interests of a law enforcement officer found to have engaged in misconduct outweigh the public's interest in learning about that misconduct. Maintaining secrecy over records like these can only encourage police misconduct by failing to ensure appropriate public accountability,” Steven Brown, executive director of the American Civil Liberties Union's state affiliate, said in an email.

“The fact that the misconduct occurred many years ago is hardly a reason to keep it under wraps; police malfeasance doesn't become less a matter of public importance merely because it is hidden long enough. It is also extremely disingenuous for the Attorney General to claim that the APRA request does not advance the public interest because it involves a single officer, not the agency. It does involve the agency, which continued to promote this officer through the ranks after the misconduct was formally recognized,” Brown continued.

Brown emphasized that the document could “easily” be redacted to protect information regarding a confidential informant and another person who has since been cleared of wrongdoing — two more reasons state prosecutors gave for withholding the record.

“Unfortunately, this decision mirrors many others that keep police wrongdoing concealed from the light of public scrutiny, and demonstrates the need to strengthen APRA to ensure more sunlight on instances of police misconduct,” Brown said.

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John Marion, executive director of the good government group, Common Cause Rhode Island, noted that the state’s public records law was amended in 2012 to require the government to apply a balancing test when deciding whether a document that is personally identifiable should be released to the public, a test that requires the government to weigh the public’s interest in the document against the right to privacy of the individual named.

“In rejecting The Providence Journal’s request for the so-called Giglio letter regarding former Lt. Col. Joseph Philbin, the Attorney General’s office sides with the privacy of the former state trooper. But the analysis ignores the nature of the record sought, which is about misconduct by the officer. What could be more in the public interest than knowing whether a senior member of the state police was deemed to be untruthful? The analysis also ignores that Mr. Philbin still works in the security field for a public agency in the state of Rhode Island,” Marion said in an email.

“The decision by the Attorney General’s office also speaks to a larger problem with our public records law in Rhode Island: As the state’s chief law enforcement officer, the Attorney General is the keeper of some of the most hotly contested records, and at the same time the office charged with enforcing the public records law. This structural conflict of interest has historically made it very difficult to get law enforcement records in Rhode Island,” Marion said.

The attorney general’s office declined comment, referring instead to Field’s letter.

Philbin has declined to comment on the substance of the Giglio finding.

State police deny request for report on 2014 assault investigation

The Rhode Island State Police, similarly, rejected The Journal’s APRA request for a report conducted by the Connecticut State Police, at then Rhode Island State Police Col. James Manni’s request, into the handling of an alleged assault of a suspect in custody in 2014 by an officer later promoted to the command ranks.

According to reports, Philbin was Gerald M. McKinney’s supervisor in the Lincoln barracks in 2014, when McKinney led a robbery suspect into a processing room and handcuffed one of his hands. The suspect became belligerent and McKinney backhanded him across the mouth.

McKinney immediately reported the incident to Philbin and wrote a detailed narrative. The incident never led to a formal finding of wrongdoing, and a video of the incident disappeared.

Former Trooper Jamie Donnelly-Taylor, whom Manni fired after taking command in 2019, alleged that the McKinney incident had been covered up. (Donnelly-Taylor admitted to assaulting a Central Falls man in custody in 2014, but insists it was in defense after being struck himself.)

Donnelly-Taylor’s accusation led former state police Col. Ann Assumpico to reexamine the McKinney incident. He was again cleared of any wrongdoing.

Upon taking command, Manni asked his Connecticut counterparts to investigate whether the incident had been handled properly. He forwarded the results of that inquiry to both the U.S. Attorney’s Office and the state attorney general for review. The Connecticut report remains under seal in a civil lawsuit against the Rhode Island State Police in state Superior Court.

The state police cited the report’s status in Superior Court as one of the reasons to deny disclosure, noting that its release is only permitted by the court “with an extensive protective order” limiting who can view or possess it.

“The fact that the Superior Court noted the sensitivity of the report by placing safeguards in place before it would be released to an attorney, further cements the RISP’s position that denying this request is proper under the APRA,” wrote Adam J. Sholes, chief legal counsel for the state police.

Like the attorney general’s office, the state police again tipped toward the privacy interests of the potentially implicated officers.

“Revealing information about how these individuals were accused of misconduct and subjected to an investigation could negatively impact their personal and professional reputations,” Sholes said.

The state police concluded that the Connecticut report was exempt under the law and that it was “impossible to redact the report in a way to protect [the employees’] privacy interests.”

Common Cause RI: 'Police misconduct is of paramount public interest'

The state police distinguished between its denial of that request and its decision last month to release its findings in an investigation into allegations that Philbin could have been linked to the death of a South Kingstown man outside a bar in East Greenwich in 2012. The state police concluded that the man, David Heffron, had fallen on his own and later died and that Philbin was working as a supervisor that night, nowhere near The Oaks Tavern.

“The release of these records was intended to shed light on the RISP investigation into allegations received by a former employee to correct the false narrative that the RISP was engaged in any kind of cover-up and/or did not properly conduct a criminal investigation,” said Sholes, stressing that the attorney general’s office was “extensively” involved in the probe.

In that case, the “public interest” lay in “confirming Joseph Philbin was working on the date in question as assuring citizens of Rhode Island that the RISP is fairly and impartially conducting criminal investigations,” particularly in light of news stories in The Journal detailing allegations raised by Donnelly-Taylor.

Background info:In 2012, a man fell outside a bar and later died. What happened is at the center of allegations of a state police coverup.

Again, Brown took issue with the denial, saying it “is wrong to fully equate the privacy interests of a private citizen who is the subject of a police investigation with the privacy interests of a law enforcement officer being investigated for official misconduct.”

“In addition, while it may be commendable for a government agency to publicly release records that they believe are otherwise exempt from disclosure in order to demonstrate that they are ‘fairly and impartially conducting criminal investigations,’ the underlying premise — that the decision would be different if the records would show unfair conduct on the part of the agency — is rather disturbing to contemplate,” Brown said.

Marion, likewise, said the agency is underplaying the public interest in alleged wrongdoing by police.

“Again, in applying the balancing test the RISP ignores that police misconduct is of paramount public interest, and the very fact that the RISP needed to seek an outside investigation demonstrates that this is not a routine matter,” Marion said.

This article originally appeared on The Providence Journal: State denies to disclose RISP misconduct records