Police Misconduct Records in Rhode Island
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(Last updated July 2, 2024)
The public faces several barriers to accessing police misconduct records in Rhode Island. Although legislators recently reformed the Law Enforcement Officers Bill of Rights to allow greater transparency in misconduct cases, not all records are available.
In June 2024, Governor Dan McKee signed into law a LEOBOR reform bill (1) that expands the hearing panel for officers accused of misconduct from three to five people and allows police chiefs to speak publicly about misconduct issues and release some video footage, among other changes. (2)
The law, however, was written in compromise with police union representatives (3) and contains limitations that prohibit the release of body camera footage of supposedly “minor” conduct violations. (4) And, while the law requires public documentation of hearings, it prohibits police chiefs from publicly discussing or releasing information about incidents relating to an officer’s summary suspension, including the disciplinary hearings. (5) The new law won’t take effect until January 2025. (6)
LEOBOR in its current form (7) continues to be a major barrier to accessing police misconduct records. The law establishes procedures for internal investigations of alleged police officer misconduct. LEOBOR also prohibits law enforcement agencies from making any public statement prior to a decision being rendered by a LEOBOR committee hearing the matter. (8) This requirement to keep silent often justifies withholding records from the public. Only once the committee renders a decision does access to police misconduct records become easier, though their release is still not a given.
Outside of LEOBOR, the Rhode Island Supreme Court has addressed police misconduct records under the state’s Access to Public Records Act (APRA) in three main cases. In each case, the court recognized APRA’s intent to facilitate public access to records while also protecting from disclosure information about individuals that would constitute an unwarranted invasion of personal privacy.
The first case involved Brown University’s student newspaper, The Rake, which in 1982 requested reports from the Providence Police Department. (9) The newspaper requested officer reports about accusations of police brutality, which the department was required to keep as a result of a consent judgment in a 1972 civil rights lawsuit. (10) The police department argued that the reports should be withheld in their entirety for two reasons. (11) First, the hearings were arranged by its personnel bureau so the records should be considered personnel records and exempt under APRA. (12) The court rejected this argument, noting that the personnel exemption requires the records to be identifiable to an individual, and thus did not apply when the names were redacted. (13) Second, the department argued that the reports should be exempt under the statute’s investigatory exemption. (14) The court disagreed, saying that the reports instead documented final actions rather than ongoing investigations. (15)
Following The Rake decision, the group Direct Action for Rights and Equality (DARE) requested similar police misconduct records from the Providence police chief in September 1993. (16) Among other records, DARE sought civilian complaints against the department, hearing officer reports concerning the civilian complaints, and reports describing disciplinary action taken in response. (17) The state Supreme Court again held that records that do not specifically identify individuals and that represent final action should be disclosed. (18) The civilian complaints and officer reports, the court determined, were subject to disclosure as long as they were properly redacted. (19) As for the disciplinary decisions resulting from those complaints, the court explained that they related to the “management and direction of a law enforcement agency,” which were expressly made public after the legislature amended APRA to recognize the “overwhelming public interest in allowing open scrutinization of the Providence police department’s civilian complaint process.” (20)
Following the transparency victories in The Rake and DARE, the state Supreme Court in 2012 reversed course and undercut the public’s right to access police misconduct records. (21) The case involved a Providence Journal report about a house party hosted by then-Governor Lincoln Chafee’s son, where a teenager left drunk and was later hospitalized. To learn more about how the state police — who report directly to the governor — handled the situation, the Journal requested police reports from the investigation. The department denied the request, stating that the reports were law enforcement records identifiable to an individual and that disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy. (22)
Implicitly accepting the department’s privacy characterization, the Supreme Court held that, when privacy interests are at stake, the requester bears the burden of showing that the public interest in disclosure outweighs such privacy interests. (23) The court held the Journal did not provide sufficient evidence to prove that the requested reports were “necessary to show the investigative agency or other responsible officials acted negligently or otherwise improperly in the performance of their duties.” (24)
Not only did the Providence Journal decision flip the presumption of openness on its head, it also now forces requestors to rebut privacy arguments by describing the content of records they have yet to obtain. Journalists and other community watchdogs are now looking for other ways to maintain transparency within law enforcement agencies.
Rhode Island’s capital has the civilian-led Providence External Review Authority, or PERA, which “investigate[s] allegations of misconduct on the part of officers of the Providence Police Department, … make[s] findings of fact and … make[s] recommendations of potential disciplinary action to the Chief of Police.” (25) Until 2020, its executive director, José Batista, oversaw investigations into allegations of police misconduct and helped make recommendations for disciplinary action. PERA members voted in 2020 to not release video of Providence Police Sergeant Joseph Hanley kneeling on the neck of a man who was handcuffed on the ground, citing the ongoing criminal proceedings against the officer as a reason to withhold the video. Batista released the footage anyway and was fired for doing so. (26)
(1) See https://governor.ri.gov/press-releases/governor-mckee-signs-law-enforcement-officers-bill-rights-reform-legislation-law#:~:text=Several%20years%20in%20the%20making,an%20attorney%20to%20the%20committee.
(2) See S 2096A, January 2024 Session.
(3) NEFAC, R.I. Open Government Groups: LEOBOR Bills ‘Take a Step Backward’ in Transparency, https://www.nefac.org/news/nefac-r-i-open-government-groups-leobor-bills-take-a-step-backward-in-transparency (May 10, 2024).
(4) RI Legislative Session Ends: What Passed on the Final Day, Providence J. (June 15, 2023). See also 42 R.I. Gen. Laws §§42-28.6-1—42-28.6-17 (2022).
(5) S 2096A §(12)(b)
(6) See https://governor.ri.gov/press-releases/governor-mckee-signs-law-enforcement-officers-bill-rights-reform-legislation-law#:~:text=Several%20years%20in%20the%20making,an%20attorney%20to%20the%20committee.
(7) RI Legislative Session Ends: What Passed on the Final Day, Providence J. (June 15, 2023). See also 42 R.I. Gen. Laws §§42-28.6-1—42-28.6-17 (2022).
(8) Id. at 42-28.6-4.
(9) The Rake v. Gorodetsky, 452 A.2d 1144, 1146 (R.I. 1982).
(10) Id.
(11) Id.
(12) Id.
(13) Id.
(14) Id.
(15) Id.
(16) Direct Action for Rights & Equality v. Gannon, 713 A.2d 218, 221 (R.I. 2003).
(17) Id. at 224.
(18) Id.
(19) Id. at 224-25.
(20) Providence Journal Co. v. R.I. Dep’t of Pub. Safety, 136 A.3d 1168, 1177 (R.I. 2016).
(21) Id.
(22) Id. at 1175.
(23) Id. at 1176.
(24) Providence External Review Authority (PERA), City of Providence, https://www.providenceri.gov/pera/. See also Providence, RI, Code of Ordinances, Sec. 18½-2, Providence External Review Authority (PERA), https://library.municode.com/ri/providence/codes/code_of_ordinances?nodeId=PTIICOOR_CH18_1-2PO_S18_1-2_-2PREXREAUPE.
(25) Steph Machado, Police Oversight Board Fires Executive Director for Releasing Video of Alleged Police Assault, WPRI (Nov. 16, 2020), https://www.wpri.com/news/local-news/providence/police-oversight-board-fires-executive-director-for-releasing-video-of-allegedpolice-assault/.